BILL ANALYSIS �
AB 1155
Page 1
Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON INSURANCE
Jose Solorio, Chair
AB 1155 (Alejo) - As Introduced: February 18, 2011
SUBJECT : Workers' compensation: apportionment: death benefits
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)Provides that a workers' compensation claim shall not be
denied because the workers' injury or death was related to one
of the protected classes noted above.
3)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.
3)Allows a permanent disability to be "apportioned" to the
various causes of the disability 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
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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 : While this bill is tagged as a nonfiscal bill,
the employer opponents raise concerns that the apportionment
provisions, in particular, could have the effect of increasing
costs by hampering the ability of an employer, including the
state, to prevail in apportionment cases.
COMMENTS :
1)Purpose: According to the author, 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)Discrimination in apportionment: 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 that the risk factor alone was sufficient to assign a
percentage of the causation to osteoporosis. 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, aside from his workplace's
contribution to hypertension. These scenarios, among numerous
other potential fact patterns, are examples of unfair
reductions in permanent disability ratings that the bill is
designed to remedy.
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3)Should Section 1 of the bill be deleted ? Section 1 of the
bill proposes to add a prohibition against denying a claim
based on the usual protected classes. This is the same
language that was in SB 145 (DeSaulnier) from last Session.
However, that issue was addressed by AB 1093 (Yamada),
Statutes 2010, Chapter 272, albeit with slightly different
language. In the process of reintroducing a new version of
the vetoed SB 145, the portion that that bill that has already
been adopted was apparently inadvertently included. As the
issue raised by this portion of the bill has already been
addressed, it may be appropriate to delete this portion of the
bill.
4)Opposition: 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. The court essentially determined that it is
improper to use risk factors, and sent the case back to the
WCAB to make sure that medical facts supported the
apportionment.
With respect to unintended consequences, the opponents believe
that the effect of the bill would be to prohibit apportionment
even when there is an actual preexisting condition, if that
condition is in some way connected to one of the protected
categories. At a minimum, they are concerned that the bill
would generate unnecessary litigation.
5)Prior legislation. In 2008, SB 1115 (Migden), and in 2010, SB
145 (DeSaulnier), addressed the apportionment discrimination
issue in virtually the same language as AB 1155. Each was
vetoed by the Governor. The Veto Message to SB 1115 follows:
I am returning Senate Bill 1115 without my signature.
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
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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.
For these reasons I am unable to sign this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
CA Official Court Reporters Association
California Communities Untied Institute (CalComUI.)
California Labor Federation
California Nurses Association (CNA)
California State Conference of the NAACP (National Association
for the Advancement of Colored People)
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
Public Counsel
UNITE HERE!
United Food and Commercial Workers - Western States Conference
Utility Workers Union of America, Local 132
Opposition
Acclamation Insurance Management Services
Allied Managed Care
ALPHA Fund
American Insurance Association (AIA)
Association of California Insurance Companies
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition on Workers' Compensation (CCWC)
California Farm Bureau Federation
California Hospital Association
California Independent Grocers Association
California Manufacturers & Technology Association (CMTA)
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California Restaurant Association
California Retailers Association
Liberty Mutual Insurance Group
Marriott
Property Casualty Insurers Association of America
Spa & Pool Industry Education Council (SPEC)
United Parcel Service (UPS)
Western Growers
Western Occupational and Environmental Medical Association
(WOEMA)
Workers' Compensation Action Network
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086