BILL ANALYSIS �
AB 1155
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ASSEMBLY THIRD READING
AB 1155 (Alejo, et al.)
As Amended April 26, 2011
Majority vote
INSURANCE 8-4
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|Ayes:|Solorio, Charles | | |
| |Calderon, Carter, Feuer, | | |
| |Hayashi, Skinner Torres, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Hagman, Grove, Miller, | | |
| |Olsen | | |
| | | | |
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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)Provides that a workers' compensation claim shall not be denied
because the worker's 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
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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
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 keyed as a non-fiscal bill, the
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 : 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.
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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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.
In 2008, SB 1115 (Migden), and in 2010, SB 145 (DeSaulnier),
addressed the apportionment discrimination issue in virtually the
same language as this bill. Each was vetoed by the Governor. The
veto message to SB 1115(Migden) 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 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.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086FN:
0000369
AB 1155
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