The California Workers’ Compensation system is designed to provide benefits to in­jured workers in the form of:

  • Medical care to cure or relieve the effects of a work-related injury.
  • Payments in the form of tem­po­­rary dis­ability benefits.  (And for safety workers: Compensation for wage loss in the form of payments pursuant to Labor Code §4850 or §4800.5.)
  • Compensation for irreversible residual harm (i.e., Per­manent Impairment/Per­ma­nent Disability in the use of specified body parts) and/or a reduction in earn­­ing capacity caused by the injury, or a reduction in the capacity to compete on the open labor market.

The determination as to whether an injured worker has sustained Permanent Im­pair­ment/Permanent Dis­ability is made after the worker has reached maximum medi­cal improvement.  Taking into account that the worker will have good days and bad days, maximum medical improvement means there is no expectation that the wor­ker’s con­di­tion will undergo a substantial change in the next year, either with or with­out treatment. 

An injured worker’s Permanent Impairment/Permanent Disability (item #3 above) has been subject to re­duc­tion by the con­cept of apportionment, which means that the em­­ployer has identi­fied pre-existing impairment or non-industrial factors which con­tributed to the wor­ker’s injury and impairment.  Sometimes the apportionment is based on race, reli­gion, creed, skin color, national origin, gender, marital status, sexual identity or sex­­­ual orientation.

As previously discussed in Newsletter 2021 Issue #4 – “Equality, Not Discrimination”, legislation (S.B. 788) was introduced on 2/29/21 by Senator Steven Bradford.  On 7/1/21, the Assembly voted 77-0 to go forward with an amended form of Senator Bradford’s bill.  The amended version of S.B. 788 removes reduction of disability values by eliminating the discriminatory elements of an injured worker’s race, religion, creed, color, national origin, gender, marital status, sexual identity or sex­ual orientation.  In the past, these factors have been a tool to lower disability values.

As readers are aware, much negotiation occurs in the creation and handling of a bill.  Therefore, the current amended bill will specifically prohibit the reduction of Perma­nent Disability payments for Permanent Impairment/Permanent Disability based upon race, religion, creed, color, national origin, gender, marital status, sexual identity or sex­­ual orientation.  Left as elements which can and will be used to reduce com­pen­sation to in­jured workers are age and genetic characteristics.

It should be noted that S.B. 788 further states, in Section 1:

It is the intent of the Legislature to eliminate bias and discrimination in the workers’ compensation system.

The prevalence of this discriminatory conduct has been ongoing, and the amended version of S.B. 788 is a strong step towards reducing such conduct by employers, third-party administrators and claims adjusters.

The elements which were left in – age and genetic characteristics – arguably are going to be tools used to reduce appropriate compensation.  However, the language of S.B. 788 does leave some factors which may be used to challenge age as a reduc­tion factor.

This bill – which constitutes an awareness of the ongoing discrimination that has con­tinued to the present date and has impacted many members of the workforce who have sustained work-related injuries and have remnants of Permanent Impair­ment/Permanent Disability – needs the support of both houses and the Governor.  In summation, S.B. 788 is a very positive development for all California workers as it cre­ates an opportunity for mutual equality.