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Young: Newsom Vetoes Apportionment Discrimination Bill

  • State: California
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Gov. Newsom has vetoed SB 788 (Bradford).

Julius Young

Julius Young

Despite the fact that SB 788 won approval in the California Senate by a 37-0 margin and a 77-0 margin in the California Assembly, Newsom issued this veto message on September 28, 2021:

“To The Members of the California State Senate:

I am returning Senate Bill 788 without my signature.

This bill would preclude a physician from using certain characteristics as the basis for apportionment of permanent disability.

Current law states that physicians shall not apportion the percentage of permanent disability awarded based on the gender, race, or other personal characteristic of the employee and provides protection from the inappropriate application of apportionment law. Instead, physicians are required to apportion the disability award based solely upon the employee’s own medical history and medical evidence.

While I support efforts to combat bias within the medical profession, this bill creates confusion with well-settled law, which is likely to result in increased litigation and subsequent delays to much-needed benefits to workers. Ongoing efforts by the Division of Workers’ Compensation to implement mandatory continuing education of medical-legal evaluators related to current anti-bias laws and apportionment training is better suited to achieve the intent of this bill.

Sincerely,

Gavin Newsom”

Newsom’s veto message is blatantly incorrect. Current workers’ comp law does not specifically ban discrimination based on race, gender and other personal characteristics.

That was the whole point of the SB 788.

And even if other California laws proscribe discrimination against personal characteristics in such things as housing and employment, there’s a dearth of application of those laws to the comp system.

Notably, genetic and age factors were removed from SB 788 in negotiations earlier this summer. A prior attempt to enact similar language (SB 899) was vetoed by Governor Jerry Brown in 2018.

Newsom has not been required to focus very much on workers’ comp issues. So we have not gotten much sense of who has his ear on California workers’ comp issues.

Now we can see that the employer-insurer coalition and their allies at the California Department of Industrial Relations still have significant sway.

The list of support for SB 788 included an impressive group of California labor unions as well as CAAA:

California Applicants’ Attorneys Association , AFSCME, AFL-CIO, Association of Orange County Deputy Sheriff’s California Labor Federation, AFL-CIO, California Professional Firefighters, California State Firefighters’ Association, California Teamsters Public Affairs Council, National Association of Social Workers, California Chapter Organization of SMUD Employees,
and United Food and Commercial Workers, Western States Council

Today there will be a lot of unhappy campers as Newsom has stuck it to his allies.

Here is a link to further information about SB 788:

https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB788

Julius Young is an applicants' attorney and a partner for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog on the firm's website.

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