BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1155|
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THIRD READING
Bill No: AB 1155
Author: Alejo (D)
Amended: 7/12/11 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM. : 5-1, 7/6/11
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NOES: Wyland
NO VOTE RECORDED: Runner
SENATE JUDICIARY COMMITTEE : 3-2, 6/14/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
ASSEMBLY FLOOR : 47-26, 5/12/11 - See last page for vote
SUBJECT : Workers compensation
SOURCE : California Applicants Attorneys Association
DIGEST : This bill prohibits a physician from considering
the following characteristics when apportioning the cause
of permanent disability for determining a worker's
compensation benefit: race, religious creed, color,
national origin, age, gender, marital status, sex, sexual
orientation, or genetic characteristics.
ANALYSIS : Existing law provides that an employer, when
liability exists, shall pay a worker for job-related
injuries. (Labor Code Section 4550 et seq.)
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Existing law provides that permanent disability
compensation shall be apportioned based on causation
pursuant to a physician's report including the approximate
percentage of the permanent disability that was caused by
the direct result of injury arising out of and occurring in
the course of employment and what approximate percentage of
the permanent disability was caused by other factors both
before and subsequent to the industrial injury, including
prior industrial injuries. (Labor Code Section 4663.)
Existing law provides that an employer shall only be liable
for the percentage of permanent disability directly caused
by the injury arising out of and occurring in the course of
employment. (Labor Code Section 4664.)
Existing law provides that no person in the State of
California shall, on the basis of race, national origin,
ethnic group identification, religion, age, sex, sexual
orientation, color, or disability, be unlawfully denied
full and equal access to the benefits of, or be unlawfully
subjected to discrimination under, any program or activity
that is conducted, operated, or administered by the state
or by any state agency, is funded directly by the state, or
receives any financial assistance from the state.
(Government Code Section 11135.)
Existing law provides that it is an unlawful employment
practice, unless based upon a bona fide occupational
qualification, or, except where based upon applicable
security regulations established by the United States or
the State of California, for an employer, because of the
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex, age, or sexual orientation of any
person, to refuse to hire or employ the person or to refuse
to select the person for a training program leading to
employment, or to bar or to discharge the person from
employment or from a training program leading to
employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of
employment. (Government Code Section 12940.)
This bill prohibits the consideration of the following
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characteristics when apportioning the cause of permanent
disability for determining a worker's compensation benefit:
race, religious creed, color, national origin, age,
gender, marital status, sex, sexual orientation, or genetic
characteristics.
This bill contains the following findings and declarations:
Under the state's workers compensation system, injured
workers or their dependents are entitled to certain
benefits that include compensation for permanent partial
disability or death arising out of, and in the course of,
employment, without regard to fault. In return,
employers are shielded from civil liability in any claims
of negligence related to the employee's injury.
Workers' compensation benefits should never be based on
the personal characteristics and risk factors of the
employee, and their use runs counter to the original
intent of apportionment.
It is the intent of the Legislature to ensure that risk
factors and the characteristics of race, religious creed,
color, national origin, age, gender, marital status, sex,
sexual orientation, or genetic characteristics are not
used to deny any injured worker his/her rightful benefit
when disabled in the workplace.
It is the intent of the Legislature to prohibit the
apportionment o frisk factors and characteristics without
prohibiting the apportionment of documentable preexisting
nonindustrial causes of disability in individual cases or
without holding an employer liable for any percentage of
permanent disability not directly caused by the injury
arising out of and occurring in the course of employment.
Background
In 2004, Governor Schwarzenegger proposed reforms to the
worker's compensation system in order to reduce the costs
of worker's compensation insurance paid by employers.
Accordingly, SB 899 (Poochigian) Chapter 34, Statutes of
2004, was signed into law and enacted many reforms of the
worker's compensation program. Among other things, SB 899
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repeals the prior worker's compensation apportionment
provision, which provided clear descriptions of "previous
injury" and "natural progression" and replaced these
descriptions with "causation." Apportionment is the method
by which the percentage of a worker's permanent disability
is attributed to the injury, pre-existing conditions, or
prior injuries, which percentages determine the amount of
the worker's compensation benefit.
Prior to the enactment of SB 899, a physician would examine
the injured worker and decide what part of the worker's
permanent disability came from the injury and what part
came from either a pre-existing disability or impairment or
from the natural progression of a pre-existing disease
process. After SB 899 was enacted, a physician must decide
what percentage of the disability was the direct result of
the injury and what percentage of the disability was caused
by "other factors." The worker receives a benefit
commensurate with only the percentage of the disability
that was caused by the actual injury.
In 2008, the San Diego Union-Tribune reported that across
California, worker's compensation benefits were being
reduced because "other factors," such as race, age, and
gender, were being used to apportion the causation of the
disability. (Calbreath, Race, Age, Gender Bias Hits
Workers Across State (Feb. 17, 2008) San Diego
Union-Tribune
(as of June 5, 2011.) One example of
race being used to decrease the disability benefit was the
case of a relief cook injured by the repeated use of a
degreasing formula. The worker experienced a variety of
symptoms from exposure to the degreaser, including
hypertension. According to the article, "the medical
examiner cut Jones' workers' comp payments in half because,
as an African-American, he had a 'genetic' predisposition
to high blood pressure or hypertension."
This bill is substantially similar to SB 1115 (Migden),
2007-08 Session, which was vetoed by Governor
Schwarzenegger who argued that the bill was unnecessary.
SB 145 (DeSaulnier), 2009-10 Session, also contained a
provision that is substantially similar to this bill and
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was vetoed because Governor Schwarzenegger believed it
would undermine the 2004 workers' compensation
apportionment reforms and that AB 1093 (Yamada), Chapter
272, Statutes of 2010, provides the same protections. AB
1093 provides a prohibition on the use of personal
characteristics when granting or denying a workers'
compensation claim under conditions of compensation.
This bill, sponsored by the California Applicants'
Attorneys Association, prohibits the consideration of the
following characteristics when apportioning the cause of
permanent disability for determining a worker's
compensation benefit: race, religious creed, color,
national origin, age, gender, marital status, sex, sexual
orientation, or genetic characteristics.
Governor Schwarzenegger's vetoes of SB 1115 and SB 145 .
This bill is substantially similar to the enrolled version
of SB 1115 (Migden), 2007-08 Session. In vetoing SB 1115,
Governor Schwarzenegger stated, "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."
SB 145 (DeSaulnier), 2009-10 Session, also contained a
provision that was substantially similar to this bill. In
vetoing SB 145, Governor Schwarzenegger stated, "This
measure, like Senate Bill 1115 (2008), which I previously
vetoed, would significantly undermined �sic] the state's
workers' compensation apportionment reforms of 2004."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/12/11)
California Applicants' Attorneys Association (source)
Advancement of Colored People
American Civil Liberties Union
California Association of Highway Patrolmen
California Communities United Institute
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California Conference of Board of the Amalgamated Transit
Union
California Conference of Machinists
California Correctional Peace Officers Association
California Labor Federation
California Nurses Association
California Official Court Reporters Association
California Society of Industrial Medicine and Surgery
California State Conference of the National Association for
the California
Consumer Attorneys of California
Engineers and Scientists of California
Glendale City Employees Association
International Longshore and Warehouse Union
Mexican American Legal Defense and Educational Fund
Organization of SMUD Employees
Peace Officers Research Association of California
Professional and Technical Engineers, Local 21
Public Counsel Law Center
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Teamsters Public Affairs Council
UNITE HERE!
United Food and Commercial Workers - Western States
Conference
Utility Workers Union of America, Local 132
OPPOSITION : (Verified 7/12/11)
Acclamation Insurance Management Services
Allied Managed Care
ALPHA Fund
American Insurance Association
Association of California Insurance Companies
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition of Workers' Compensation
California Farm Bureau Federation
California Grocers Association
California Hospital Association
California Independent Growers Association
California Manufacturers & Technology Association
California Restaurant Association
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California Retailers Association
California Trucking Association
CSAC Excess Insurance Authority
Liberty Mutual Insurance Group
Los Angeles County Board of Supervisors
Marriott
Property Casualty Insurers Association of America
Safeway
Spa & Pool Industry Education Council
UPS, Inc.
Western Growers
Western Occupational & Environmental Medical Association
Workers' Compensation Action Network
ARGUMENTS IN SUPPORT : The author writes, "Currently, if
an employee is injured on the job then he/she has the right
to file a workers compensation disability claim. . .
However, some disabled workers are having their
compensation apportioned not just to prior and/or
pre-existing disabilities but also to factors such as age,
race, and gender.
"Insurance companies aggressively seek to reduce the amount
requested in the claim, thus reducing the amount of
benefits paid to the injured worker. The insurance
companies frequently apportion the injury based on "risk
factors." These risk factors are based upon race, gender,
age and other immutable characteristics."
ARGUMENTS IN OPPOSITION : The California Manufacturers &
Technology Association (CMTA), an opponent of this bill,
argues that apportionment is a "long-standing concept
intended to protect employers from being forced to pay for
disability that is not directly caused by an industrial
injury. There is currently nothing in the Labor Code that
allows for discrimination based on protected classes when
adjusting the worker's compensation disability rating."
CMTA argues that case law demonstrates that courts do not
uphold apportionment based on discrimination. For this
reason, CMTA is requesting amendments to the bill to strike
the intent language and delete the words "cause or other".
CMTA points to Vaira v. WCAB , 9 WCAB Rptr. 10,371, wherein
the Court of Appeal held that, to the extent the medical
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examiner based his apportionment of disability on the
worker's age, this would be a violation of the prohibition
against discrimination. Yet, this ruling was handed down
only after the worker's compensation judge accepted the
medical examiner's apportionment and after the petitioning
worker requested reconsideration of the apportionment three
times, with the same result. It appears a clarification of
law is necessary so that medical examiners are clear that
characteristics should not be considered as other factors
contributing to a disability and future workers are not
required to follow the same extended path as Ms. Vaira
toward a fair and just result.
CMTA also argues that this bill will have the unintended
consequence of automatic increased litigation because every
apportionment determination will be questionable, this bill
will create uncertainty, hurt businesses, and "undo the
reforms that were put in place to create objectivity and
fairness." In response, proponents of this bill argue that
it will not automatically increase litigation but rather
clarify and conform the Labor Code to the
anti-discrimination provisions of the Government Code. If
the medical examiner is aware of what other factors should
and should not be used in apportioning disability,
protracted litigation as demonstrated in Vaira will be
avoided.
ASSEMBLY FLOOR : 47-26, 5/12/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Gatto, Gordon,
Hall, Hayashi, Roger Hern�ndez, Hill, Huber, Hueso,
Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell,
Monning, Pan, Perea, V. Manuel P�rez, Skinner, Solorio,
Swanson, Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Grove, Hagman, Halderman, Harkey,
Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Silva, Smyth, Valadao,
Wagner
NO VOTE RECORDED: Cedillo, Furutani, Galgiani, Garrick,
Gorell, Portantino, Torres
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RJG:do 7/12/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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