BILL ANALYSIS
SB 145
Page 1
SENATE THIRD READING
SB 145 (DeSaulnier)
As Amended August 19, 2010
Majority vote
SENATE VOTE : 23-15
INSURANCE 7-3
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|Ayes:|Solorio, Charles | | |
| |Calderon, Carter, Feuer, | | |
| |Hayashi, Nava, Torres | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Garrick, Anderson, Niello | | |
| | | | |
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SUMMARY : Prohibits discrimination on the basis of specified
protected classes for purposes of apportioning permanent
disability. Specifically, this bill :
1)Prohibits discrimination on the basis of race, religious
creed, color, national origin, age, gender, marital status,
sex or genetic characteristics in the process of apportioning
medical causation for purposes of determining an employer's
liability for the permanent disability of an employee injured
on the job.
2)Defines "genetic characteristics" by citation to the life and
health insurance anti-genetic discrimination law that has been
in effect and used by insurers for a number of years.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits for workers who are injured on the job, including
payments to compensate an injured worker for the permanent
disability caused by an on-the-job injury.
2)Establishes a formula that is used to determine the extent of
permanent disability, which is expressed as a percentage, and
compensates the injured worker based on the percentage to
which he or she is permanently disabled.
SB 145
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3)Allows a permanent disability to be "apportioned" to the
various causes so that an employer is only liable for the
portion of the disability attributable to employment by that
employer.
4)Requires a physician, when making a report on permanent
disability, to make an apportionment determination by
providing an approximation of the percentage of the disability
that is caused by the injury at work, and an approximation of
the percentage of the disability that is caused by other
factors, whether industrial or nonindustrial, and whether
occurring before or after the workplace injury.
FISCAL EFFECT : This bill is tagged as a nonfiscal bill, but
employer opponents raise concerns that the bill could have the
effect of increasing costs by hampering the ability of an
employer, including the state, to prevail in apportionment
cases.
COMMENTS :
1)According to the Author, the bill addresses a problem where
some physicians are making discriminatory generalizations,
rather than examining actual medical conditions or facts, when
they are carrying out the mandate that they assign percentages
to the various causes of a permanent disability.
Specifically, the Author seeks to prevent physicians from
using "risk factors" as opposed to actual medical conditions,
when making these apportionment determinations.
2)Proponents point to several examples of inappropriate
discrimination in application of the apportionment laws. In
an unpublished appellate decision, Vaira v. WCAB , the Court of
Appeal returned a case to the Workers' Compensation Appeals
Board (WCAB) because the record was insufficient to determine
whether the physician had based his apportionment decision on
medical facts that showed the older female claimant suffered
from osteoporosis, or on the basis of the risk factor alone.
Among the cases reported in the media is a case of an
African-American man who had his permanent disability rating
cut in half because of the fact that African-American males
have a higher incidence of high blood pressure, and thus there
was a genetic predisposition to hypertension.
SB 145
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3)The opponents do not disagree that discrimination based on
risk factors associated with the bill's protected categories
is wrong. They respond, however, by arguing that the law
already provides protections, and the bill only serves to open
a Pandora's Box of problems. Specifically, opponents argue
that the Vaira case proves that the law is not in need of
change. They are concerned that the bill would generate
unnecessary litigation.
Last year, SB 1115 (Migden) addressed the apportionment
discrimination issue in virtually the same language as SB 145.
It was vetoed by the Governor. The veto message follows:
"This bill is intended to provide that race, religious
creed, color, national origin, age, gender, marital
status, sex, or genetic predisposition shall not be
considered a cause or other factor of disability when
determining apportionment of disability for the purposes
of workers' compensation. While I support the intent of
this measure, I do not believe it is necessary. Current
law, as well as court rulings, adequately protects injured
workers from inappropriate application of apportionment
statutes. In addition, I am concerned that the manner in
which this bill is worded could inadvertently create new
ambiguities in the law and result in increased
litigation."
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086
FN: 0006536