(September 3, 2008) Legislation that increases workers’ compensation costs and rolls back the workers’ compensation reforms from 2004 by making apportionment very difficult to prove has been sent to enrollment, the phase of the legislative process when bills are proofed and prepared for delivery to the Governor.

California Chamber of Commerce-opposed SB 1115 (Migden; D-San Francisco), a “job killer” bill, weakens the apportionment statute and allows judges to overrule apportionment even when based on findings of actual previous disability.

SB 1115 would lead to increased litigation and indemnity costs for employers, as well as open the apportio­nment statute to attack by attorneys seeking to increase the disability award of their clients.

Apportionment

Apportionment is a long-held concept encompassing the principle that an injured worker deserves to be compensated for disability arising from an industrial injury and that the employer deserves to be protected from paying increased compensation for disability that does not arise from an industrial injury.

In opposing SB 1115, the CalChamber and a coalition of employer groups have noted that the issue of apportionment to risk factors has been most appropriately evaluated and addressed by the 3rd Appellate District in Vaira v. Workers’ Compensation Appeals Board.

The principal issue in this case was the apportionment of 40 percent of the applicant’s overall disability to osteoporosis. The applicant argued that this was “per se” discrimination because the osteoporosis was related to the applicant’s age and gender, and that this discrimination is prohibited by California’s anti-discrimination laws.

The court held that apportionment based solely on age and gender is inappropriate, but rejected the argument that any condition related to age or sex amounted to discrimination and could not be the basis for apportionment.

Action Needed

SB 1115 will go to the Governor soon for consideration. Contact the Governor and urge him to veto SB 1115.

For a sample letter, visit www.calchambervotes.com.

Key Vote

SB 1115 passed the Assembly on August 19 on a vote of 46-31:

Ayes: Arambula (D-Fresno), Beall (D-San Jose), Berg (D-Eureka), Brownley (D-Santa Monica), Caballero (D-Salinas), C. Calderon (D-Montebello), Carter (D-Rialto), Coto (D-San Jose), Davis (D-Los Angeles), De La Torre (D-South Gate), De León (D-Los Angeles), DeSaulnier (D-Concord), Dymally (D-Compton), Eng (D-Monterey Park), Evans (D-Santa Rosa), Feuer (D-Los Angeles), Fuentes (D-Sylmar), Furutani (D-Long Beach), Galgiani (D-Stockton), Hancock (D-Berkeley), Hayashi (D-Castro Valley), Hernandez (D-La Puente), Huffman (D-San Rafael), Jones (D-Sacramento), Karnette (D-Long Beach), Krekorian (D-Burbank), Laird (D-Santa Cruz), Leno (D-San Francisco), Levine (D-Van Nuys), Lieber (D-San Jose), Lieu (D-Torrance), Ma (D-San Francisco), Mendoza (D-Artesia), Mullin (D-South San Francisco), Nava (D-Santa Barbara), Núñez (D-Los Angeles), Parra (D-Hanford), Portantino (D-La Cañada Flintridge), Price (D-Inglewood), Ruskin (D-Redwood City), Salas (D-Chula Vista), Saldaña (D-San Diego), Solorio (D-Santa Ana), Swanson (D-Oakland), Torrico (D-Newark), Wolk (D-Davis).

Noes: Adams (R-Hesperia), Aghazarian (R-Stockton), Anderson (R-La Mesa), Benoit (R-Bermuda Dunes), Berryhill (R-Modesto), Blakeslee (R-San Luis Obispo), Cook (R-Yucca Valley), DeVore (R-Irvine), Duvall (R-Yorba Linda), Emmerson (R-Redlands), Fuller (R-Bakersfield), Gaines (R-Roseville), Garcia (R-Cathedral City), Garrick (R-Solana Beach), Horton (R-Chula Vista), Houston (R-San Ramon), Huff (R-Diamond Bar), Jeffries (R-Lake Elsinore), Keene (R-Chico), La Malfa (R-Richvale), Maze (R-Visalia), Nakanishi (R-Lodi), Niello (R-Fair Oaks), Plescia (R-La Jolla), Silva (R-Huntington Beach), Smyth (R-Santa Clarita), Spitzer (R-Orange), Strickland (R-Moorpark), Tran (R-Costa Mesa), Villines (R-Clovis), Walters (R-Laguna Niguel).

Absent/abstaining/not voting: Bass (D-Los Angeles), Sharon Runner (R-Lancaster), Soto (D-Pomona).