March 4, 2009

Taneka's Law

Back in December we blogged the sad story of Taneka Talley, who was stabbed to death while working as a clerk for Dollar Tree. Her assailant, Tommy Joe Thompson, singled her out simply and solely because she was black. At first, Dollar Tree denied the claim, under the theory that Talley's race - not her employment - was the cause of the attack. After public outcry, Dollar Tree's insurer decided to pay death benefits to Talley's 11 year old son.

This case generated a lot of comment from Insider readers, who were divided on the whether the incident should have been compensable under workers comp. Now a California assemblywoman, Mariko Yamada (D-Davis), has filed a bill to address the ambiguities of this case. AB 1093 would forbid the denial of a comp claim where the motivation for the injury or death was related to an "immutable" personal characteristic - such as race, age or gender.

Here is the proposed language to amend Section 3600 of Labor Code:

(c) No workers’ compensation claim shall be denied solely because the motivation behind what caused the employee’s injury or death was related to an immutable personal characteristic of that employee.

"By introducing 'Taneka's Law,' I hope that no other family in California will ever have to endure the unspeakable pain that the Talley family experienced," Yamada stated.

Chain of Ambiguities
The proposed language raises an interesting issue: what exactly is an "immutable" personal characteristic? Would this include mental disabilities (such as "intermittant rage disorder") or would such diagnoses be considered mutable? In terms of physical disabilities, where is the line between "permanent" (immutable) and "temporary" (mutable). Does anyone at maximum medical improvement (MMI) by definition have an "immutable" charateristic?

This bill is designed to close a loop hole in workers comp coverage. Should it become law, it will be interesting to track the inevitable loop holes that the new statutory language (inadvertantly) creates.


| 2 Comments

2 Comments

I agree with the confusion created by this bill and that new case law attempting to define "immutable" (not capable of or susceptible to change Merriam-Webter)will obfuscate the original intention of the WC law.

I would also argue that this test takes the remedy far beyond "course and scope of employment".

The law in Australia is clear on this point - since a High Court decision in Weston v Great Boulder Mines http://www.austlii.edu.au/au/cases/cth/HCA/1964/59.html
The High Court held that a worker assaulted at work suddenly and be surprise was injured in the same way as any unexpected accident - no problem with compensation for a workplace death where the worker is not involved in any personal dispute with the assailant.

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This page contains a single entry by Jon Coppelman published on March 4, 2009 12:11 PM.

Title Dis-Insurance? was the previous entry in this blog.

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