BILL ANALYSIS
AB 338
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CONCURRENCE IN SENATE AMENDMENTS
AB 338 (Coto)
As Amended September 6, 2007
Majority vote
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|ASSEMBLY: |48-24|(June 6, 2007) |SENATE: |37-3 |(September 10, |
| | | | | |2007) |
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Original Committee Reference: INS.
SUMMARY : Extends the "window period" during which an injured
workers can receive up to 104 weeks of temporary disability (TD)
benefits from two years to five years. Specifically, this bill:
1)Extends the window during which an injured worker can receive
TD benefits from two years to five years.
2)Changes the date that starting the window period running from
the date TD benefits are first paid to the date of injury.
The Senate amendments delete the Assembly version of the bill,
and adopt the approach described above.
EXISTING LAW :
1)Caps temporary disability benefit payments at 104 weeks.
2)Provides that an injured worker cannot receive temporary
disability benefits for more than two years after the date
that temporary disability payments commenced, even if the
employee has not used up the maximum 104 weeks of benefits.
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided that, for injuries occurring on or after January 1,
2007, an injured worker may receive up to 156 weeks of
temporary disability benefits.
2)Allowed these benefits to be received at any time within five
years of the date of injury.
3)Extended the 156 weeks of potential benefits by the amount of
time when any of the following occur:
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a) When temporary disability benefits are due and payable
and more than 14 days late;
b) When an employer's objection causes a delay in the
injured worker receiving treatment, and the review or
objection is decided in favor of the injured worker;
c) When a utilization review decision is challenged by the
employee, and the issue is ultimately decided in favor of
the employee, unless the employer demonstrates that the
ultimate decision in favor of the employee was based on
information that could not have been reasonably obtained by
the employer within the time frames of the utilization
system; and,
d) When a utilization review decision is not conveyed to
the employee within the time frame required by the
utilization system.
4)Provided that the one-year "4850" leave of absence time for
safety officers can be extended for the same reasons noted
above.
5)Denied temporary disability benefits to injured workers while
incarcerated.
FISCAL EFFECT : Minor increase in costs to the state for
injuries to state employees.
COMMENTS :
1)Purpose: According to the sponsor, the current 2-year window
during which an injured employee can receive the 104 allowable
weeks of temporary disability benefits unfairly penalizes the
employee who has returned to work -- the very thing the
workers' compensation system is intended to encourage. In
fact, there is a consensus among most participants in the
workers compensation system that the 2-year window is unfair.
According to the Commission on Health and Safety and Workers
Compensation (CHSWC), the cost factor of extending the window
to 5 years is insignificantly higher than extending it to 3
years, and therefore the 5-year rule would protect the small
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number of outlying cases without much overall cost impact
above a 3-year rule. A typical worker benefited by the bill
is a worker who attempts to return to work, but the injury
simply does not heal properly, and ultimately requires
surgery. If the decision to undergo surgery is made more than
2 years after the injury, the worker gets no TD benefits
during recovery, even if he or she has not used up all of the
allotted 104 weeks. AB 338 cures this defect.
2)Consensus Solution: The Senate amendments represent a
consensus solution to this problem. Many employer groups are
in support, and others have come to neutral positions. Labor
organizations and the California Applicants' Attorneys
Association remain in support. There is no formal opposition
from interested parties that can be confirmed.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086
FN: 0003502