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Perhaps this year is the year.

During the Schwarzenegger years, the governor repeatedly vetoed bills that would have outlawed discrimination in apportionment determinations in workers’ comp.

That anti-discrimination concept, currently embodied in AB 1155, may well face a better fate during the Brown years. Today the bill passed out of the California Assembly on a 44-22 party line vote.

Sponsors of the bill include many of the current heavy hitters under the Capitol dome: the bill was introduced by Assembly Members Alejo, Roger Hernández, and Lara . The principal coauthor is Assembly Member Charles Calderon and coauthors are Assembly Members Allen, Ammiano, Beall, Carter, Cedillo, Dickinson, Eng, Fong, Furutani, Hueso, Ma, Mendoza, Monning, Perea, Skinner, Swanson, and Williams
as well as coauthors Senators Hancock, Leno, Rubio, and Steinberg.

AB 1155 would forbid apportionment discrimination based on age, sex or race.

The issue arises because current law requires QME physicians to make an approximate determination of the portion of disability caused by the industrial injury. The goal of the bill is to prevent factors of age, race or sex from playing any part in that determination.

The legislative analysis of the bill notes as follows:
“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 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.”

Opponents of the bill fear that the bill will result in increased workers’ comp costs.

But that’s hard to quantify, and the impact of this bill may be largely symbolic in most instances.

Yet, many attorneys in the trenches have seen doctors apportion to “age”, to “femininity”, or to characteristics which seem racially based.
The bill would largely put a stop to discrimination against workers based on their immutable characteristics.

Under current law, there have been attacks on what seemed to be gendered-related apportionment. An earlier post I did on the Vaira and Fitzgerald cases can be seen here:
http://www.workerscompzone.com/index.ph … 204-235850

This bill would make such discrimination explicitly illegal. If opponents don’t think discrimination in apportionment is such a problem, then why the concern about the bill?

The current text of the bill is here:
http://www.leginfo.ca.gov/pub/11-12/bil … sm_v97.pdf

Stay tuned.

Julius Young
www.workerscompzone.com
http://www.facebook.com/pages/Boxer-Ger … 8096336579

Category: Political developments

Julius Young

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