BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1155|
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THIRD READING
Bill No: AB 1155
Author: Alejo (D), et al.
Amended: 8/30/11 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 states the intent of the Legislature
to prohibit the use of risk factors and specified
characteristics to deny an injured worker his/her rightful
benefit when disabled in the workplace. This bill
specifies that the approximate percentage of a permanent
disability of an injured employee caused by other factors
not directly arising out of the industrial injury of the
employee shall not include consideration of race, religious
creed, color, national origin, age, gender, marital status,
sex, sexual orientation, or genetic characteristics, in the
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determination of worker's compensation benefit.
Senate Floor Amendments of 8/30/11 clarify the intent of
the bill, prohibition on the use of membership in a
protected class in the calculation of permanent disability
benefits in the workers' compensation system
ANALYSIS : Existing law provides that an employer, when
liability exists, shall pay a worker for job-related
injuries.
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.
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.
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.
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
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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.
This bill states the intent of the Legislature to prohibit
the use of risk factors and specified characteristics to
deny an injured worker his/her rightful benefit when
disabled in the workplace. This bill specifies that the
approximate percentage of a permanent disability of an
injured employee caused by other factors not directly
arising out of the industrial injury of the employee shall
not include consideration of race, religious creed, color,
national origin, age, gender, marital status, sex, sexual
orientation, or genetic characteristics, in the
determination of worker's compensation benefit.
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
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
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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
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.
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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 8/31/11)
California Applicants' Attorneys Association (source)
American Civil Liberties Union
California Association of Highway Patrolmen
California Communities United Institute
California Conference 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 NAACP
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California
Glendale City Employees Association
International Longshore and Warehouse Union
Organization of SMUD Employees
Peace Officers Research Association of California
Professional and Technical Engineers, Local 21
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Public Council Law Center
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
United Food and Commercial Workers
Utility Workers Union of America, Local 132
OPPOSITION : (Verified 8/31/11)
Acclamation Insurance Management Services
Allied Managed Care
Alpha Fund
Association of California Insurance Companies
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition on Workers' Compensation
California Farm Bureau Federation
California Grocers Association
California Hospital Association
California Independent Grocers Association
California Manufacturers & Technology Association
California Restaurant Association
California Retailers Association
California Trucking Association
Los Angeles County Board of Supervisors
Long Beach Area Chamber of Commerce
Liberty Mutual Insurance Group
Marriott
Oxnard Chamber of Commerce
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 argues, "Currently, if
an employee is injured on the job then he/she has the right
to file a workers compensation disability claim. 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," such as race,
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gender or age. Reducing compensation based on "risk
factors" penalizes an individual for being part of a
certain race, gender or age group, regardless of whether
the individual had any symptoms or whether the "risk
factor" affected the ability to do the job. Injured
workers should not receive less compensation because of
these immutable factors. AB 1155 clarifies that injured
workers have the same protections when it comes to their
workers compensation
benefits as the rest of us."
ARGUMENTS IN OPPOSITION : According to the opposition, if
this bill is passed and not amended it will automatically
increase litigation, questioning every reasonable
apportionment case. Injured workers should indeed be
protected from discrimination but there is no court case
evidence that the apportionment process is set up to
discriminate against an injured worker. There are
protections in place through the judicial process to
reverse any adverse action in this direction. The Labor
Code is very clear - apportionment is the process of
protecting employers from paying for disability that is not
a result of the industrial injury suffered at their place
of employment. The courts have also been very clear -
discrimination based on protected classes is not allowed
under current law.
Confusion surrounding the application of the word cause
will undermine years of case law. In the Vaira case it is
re-enforced that "?apportionment is only proper where a
preexisting condition or prior injury contributes to the
employee's disability, rather than the employee's injury."
The proponents of this bill are interchanging case of
injury with cause of disability. These differences are
critical in the application of the medical evaluation.
Therefore, using the word cause in the statute may result
in denying apportionment to any factor that could in any
way be related or caused by one of the protected classes.
It is essential that the words "cause or other" be removed
to avoid this confusion and in fact clarify existing law.
ASSEMBLY FLOOR : 47-26, 5/12/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
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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
PQ:do 8/31/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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