BILL ANALYSIS �
AB 1155
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ASSEMBLY THIRD READING
AB 1155 (Alejo, Roger Hern�ndez and Lara)
As Amended May 9, 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
compensates the injured worker based on the percentage to which
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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) 319-2086 FN:
0000559
AB 1155
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