BILL NUMBER: SB 145 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 26, 2009
INTRODUCED BY Senator DeSaulnier
FEBRUARY 11, 2009
An act to amend Sections 3600 and 4663 of the Labor Code, relating
to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
SB 145, as amended, DeSaulnier. Workers' compensation.
(1) Existing workers' compensation law generally requires
employers to secure the payment of workers' compensation, including
medical treatment, for injuries incurred by their employees that
arise out of, and in the course of, employment.
This bill would provide that no workers' compensation claim shall
be denied solely because the motivation
behind what caused the employee's injury or injury
resulting in death was related to an immutable
characteristic of the employee the employee's race,
religious creed, color, national origin, age, gender, marital status,
sex, sexual orientation, or genetic predisposition .
This bill would also state the intent of the Legislature to enact
legislation that would apply employment discrimination protections to
workers' compensation law in order to prohibit the wrongful
reduction or denial of workers' compensation benefits.
(2) Existing law requires any physician who prepares a report
addressing the issue of permanent disability due to a claimed
industrial injury to address the issue of causation of the permanent
disability, and requires that the report include an apportionment
determination to be considered complete on the issue of permanent
disability.
This bill would prohibit race, religious creed, color, national
origin, age, gender, marital status, sex, sexual orientation, or
genetic predisposition from being considered a cause or other factor
of disability considered in any determination made pursuant to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3600 of the Labor Code is amended to read:
3600. (a) Liability for the compensation provided by this
division, in lieu of any other liability whatsoever to any person
except as otherwise specifically provided in Sections 3602, 3706, and
4558, shall, without regard to negligence, exist against an employer
for any injury sustained by his or her employees arising out of and
in the course of the employment and for the death of any employee if
the injury proximately causes death, in those cases where the
following conditions of compensation concur:
(1) Where, at the time of the injury, both the employer and the
employee are subject to the compensation provisions of this division.
(2) Where, at the time of the injury, the employee is performing
service growing out of and incidental to his or her employment and is
acting within the course of his or her employment.
(3) Where the injury is proximately caused by the employment,
either with or without negligence.
(4) Where the injury is not caused by the intoxication, by alcohol
or the unlawful use of a controlled substance, of the injured
employee. As used in this paragraph, "controlled substance" shall
have the same meaning as prescribed in Section 11007 of the Health
and Safety Code.
(5) Where the injury is not intentionally self-inflicted.
(6) Where the employee has not willfully and deliberately caused
his or her own death.
(7) Where the injury does not arise out of an altercation in which
the injured employee is the initial physical aggressor.
(8) Where the injury is not caused by the commission of a felony,
or a crime that is punishable as specified in subdivision (b) of
Section 17 of the Penal Code, by the injured employee, for which he
or she has been convicted.
(9) Where the injury does not arise out of voluntary participation
in any off-duty recreational, social, or athletic activity not
constituting part of the employee's work-related duties, except where
these activities are a reasonable expectancy of, or are expressly or
impliedly required by, the employment. The administrative director
shall promulgate reasonable rules and regulations requiring employers
to post and keep posted in a conspicuous place or places a notice
advising employees of the provisions of this subdivision. Failure of
the employer to post the notice shall not constitute an expression of
intent to waive the provisions of this subdivision.
(10) Except for psychiatric injuries governed by subdivision (e)
of Section 3208.3, where the claim for compensation is filed after
notice of termination or layoff, including voluntary layoff, and the
claim is for an injury occurring prior to the time of notice of
termination or layoff, no compensation shall be paid unless the
employee demonstrates by a preponderance of the evidence that one or
more of the following conditions apply:
(A) The employer has notice of the injury, as provided under
Chapter 2 (commencing with Section 5400), prior to the notice of
termination or layoff.
(B) The employee's medical records, existing prior to the notice
of termination or layoff, contain evidence of the injury.
(C) The date of injury, as specified in Section 5411, is
subsequent to the date of the notice of termination or layoff, but
prior to the effective date of the termination or layoff.
(D) The date of injury, as specified in Section 5412, is
subsequent to the date of the notice of termination or layoff.
For purposes of this paragraph, an employee provided notice
pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411,
87740, and 87743 of the Education Code shall be considered to have
been provided a notice of termination or layoff only upon a district'
s final decision not to reemploy that person.
A notice of termination or layoff that is not followed within 60
days by that termination or layoff shall not be subject to the
provisions of this paragraph, and this paragraph shall not apply
until receipt of a later notice of termination or layoff. The
issuance of frequent notices of termination or layoff to an employee
shall be considered a bad faith personnel action and shall make this
paragraph inapplicable to the employee.
(b) Where an employee, or his or her dependents, receives the
compensation provided by this division and secures a judgment for, or
settlement of, civil damages pursuant to those specific exemptions
to the employee's exclusive remedy set forth in subdivision (b) of
Section 3602 and Section 4558, the compensation paid under this
division shall be credited against the judgment or settlement, and
the employer shall be relieved from the obligation to pay further
compensation to, or on behalf of, the employee or his or her
dependents up to the net amount of the judgment or settlement
received by the employee or his or her heirs, or that portion of the
judgment as has been satisfied.
(c) No workers' compensation claim shall be denied solely because
the motivation behind what caused the employee's injury or injury
resulting in death was related to an immutable characteristic of the
employee.
(c) No workers' compensation claim shall be denied because the
employee's injury or death was related to the employee's race,
religious creed, color, national origin, age, gender, marital status,
sex, sexual orientation, or genetic predisposition.
SEC. 2. Section 4663 of the Labor Code is amended to read:
4663. (a) Apportionment of permanent disability shall be based on
causation.
(b) Any physician who prepares a report addressing the issue of
permanent disability due to a claimed industrial injury shall in that
report address the issue of causation of the permanent disability.
(c) In order for a physician's report to be considered complete on
the issue of permanent disability, the report must include an
apportionment determination. A physician shall make an apportionment
determination by finding what approximate percentage of the permanent
disability is 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 is caused by other factors
both before and subsequent to the industrial injury, including prior
industrial injuries. If the physician is unable to include an
apportionment determination in his or her report, the physician shall
state the specific reasons why the physician cannot make a
determination of the effect of that prior condition on the permanent
disability arising from the injury. The physician shall then consult
with other physicians or refer the employee to another physician from
whom the employee is authorized to seek treatment or evaluation in
accordance with this division in order to make the final
determination. Race, religious creed, color, national origin, age,
gender, marital status, sex, sexual orientation, or genetic
predisposition shall not be considered a cause or other factor of
disability with regard to any determination made under this section.
(d) An employee who claims an industrial injury shall, upon
request, disclose all previous permanent disabilities or physical
impairments.
(e) Subdivisions (a), (b), and (c) shall not apply to injuries or
illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3,
3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10,
3212.11, 3212.12, 3213, and 3213.2.
SEC. 3. (a) The Legislature finds and declares all of the
following:
(1) The federal and state constitutions, federal law, and state
statutes prohibit employment discrimination against individuals on
the basis of immutable characteristics, such as race, age, gender,
and sexual orientation, as well as other factors, such as religion
and marital status.
(2) 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.
(3) Workers' compensation benefits have been reduced or denied on
the basis of personal characteristics of the employee that, if
applied in an employment context, would be prohibited employment
discrimination.
(b) It is the intent of the Legislature to enact legislation that
would apply employment discrimination protections to workers'
compensation law in order to prohibit the wrongful reduction or
denial of workers' compensation benefits.