BILL NUMBER: SB 942 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 6, 2007
AMENDED IN ASSEMBLY JULY 5, 2007
AMENDED IN SENATE MAY 8, 2007
AMENDED IN SENATE APRIL 18, 2007
AMENDED IN SENATE MARCH 29, 2007
INTRODUCED BY Senator Migden
FEBRUARY 23, 2007
An act to amend Sections 132a, 3201.81, 4658.5,
and 4658.6 of the Labor Code, relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
SB 942, as amended, Migden. Workers' compensation: disability.
(1) Existing Workers' Compensation Law requires employers to
secure the payment of workers' compensation, including medical
treatment, for injuries incurred by their employees that arise out
of, or in the course of, employment. Existing law declares
that it is the policy of this state that there should not be
discrimination against workers who are injured in the course or scope
of their employment.
This bill would require an employer to reinstate an employee to
his or her preinjury job within 5 working days after receipt of a
written statement by the treating physician that the employee is able
to perform the essential functions of the employee's regular
position, notwithstanding the risks inherent in the position, without
a risk of further injury to the employee due to the effects of the
injury or illness, and when the employee is willing and available to
return to work. The bill would provide that if the employer refuses
to reinstate such an employee to his or her preinjury job, the
employer shall be required to reimburse the employee for lost wages
and work benefits. The bill would prohibit an employer from requiring
an employee to perform additional physical duties that were not
required of the employee prior to his or her injury or illness as a
condition for returning to employment, unless the additional physical
duties are reasonably required to accommodate the employee's
disability or the additional physical duties are presently being
required of the employees in the same class or job assignment as the
employee held at the time he or she was injured. The bill would
require an employer to reimburse the employee for lost wages and work
benefits for any time that the employee is unable to work due to the
imposition of additional physical duties that are not reasonably
required to accommodate the employee's disability.
(2) Existing
Existing law provides for the payment of temporary
disability indemnity payments to any injured employee under specified
circumstances, with certain exceptions, and provides that, if an
injury causes permanent partial disability and the injured employee
does not return to work for the employer within 60 days of the
termination of temporary disability indemnity payments, the injured
employee shall be eligible to receive a supplemental job displacement
benefit, as specified.
This bill would, instead, provide that, for injuries occurring on
or after January 1, 2008, if the injury causes permanent partial
disability and the injured employee does not return to work for the
employer within 60 days after the disability becomes permanent and
stationary, the employee shall be entitled to receive a supplemental
job displacement benefit, and would revise the amounts of benefits an
injured employee would be eligible to receive, as specified.
(3)
(2) Existing law provides that the employer shall not
be liable for the supplemental job displacement benefit if, within 30
days of the termination of temporary disability indemnity benefits,
the employer offers, and the employee rejects, or fails to accept,
modified or alternative work, as specified.
This bill instead would provide that an employer shall not be
liable for supplemental job displacement benefits if, within 60 days
of the disability becoming permanent and stationary, the employer
offers the injured employee regular work or modified work. It would
also make a technical, clarifying change.
(3) This bill would incorporate additional changes in Section
4658.5 of the Labor Code, proposed by this bill and AB 1636, to be
operative only if this bill and AB 1636 are both chaptered and become
effective January 1, 2008, and this bill is chaptered last.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 132a of the Labor Code is
amended to read:
132a. (a) It is the declared policy of this state that there
should not be discrimination against workers who are injured in the
course and scope of their employment. It is further the policy of
this state that there should not be discrimination against employees
who attempt to exercise their rights under subdivision (d) of Section
4600.
(b) (1) Any employer who discharges, or threatens to discharge, or
in any manner discriminates against any employee because he or she
has filed or made known his or her intention to file a claim for
compensation with his or her employer or an application for
adjudication, or because the employee has received a rating, award,
or settlement, is guilty of a misdemeanor and the employee's
compensation shall be increased by one-half, but in no event more
than ten thousand dollars ($10,000), together with costs and expenses
not in excess of two hundred fifty dollars ($250). Any such employee
shall also be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured
under penalty of cancellation or a raise in premium or for any other
reason, to discharge an employee because he or she has filed or made
known his or her intention to file a claim for compensation with his
or her employer or an application for adjudication, or because the
employee has received a rating, award, or settlement, is guilty of a
misdemeanor and subject to the increased compensation and costs
provided in paragraph (1).
(3) Any employer who discharges, or threatens to discharge, or in
any manner discriminates against any employee because the employee
testified or made known his or her intentions to testify in another
employee's case before the appeals board, is guilty of a misdemeanor,
and the employee shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer.
(4) (A) An employer shall reinstate an employee to his or her
preinjury job within five working days after receipt of a written
statement by the treating physician that the employee is able to
perform the essential functions of the employee's regular position,
notwithstanding the risks inherent in the position, without a risk of
further injury to the employee being increased due to the effects of
the injury or illness, and where the employee is willing and
available to return to work. If an employer refuses to reinstate such
an employee to his or her preinjury job, the employer shall be
required to reimburse the employee for lost wages and work benefits.
(B) No employer shall require an employee to perform additional
physical duties that the employee was not required to perform prior
to the injuries or illness as a condition of returning to work,
unless the additional physical duties are reasonably required to
accommodate the employee's disability or the additional physical
duties are presently being required of the employees in the same
class or job assignment as the employee held at the time he or she
was injured. An employer shall reimburse the employee for lost wages
and work benefits for any time that the employee is unable to work
due to the imposition of additional physical duties that are not
reasonably required to accommodate the employee's disability.
(C) Any employer who refuses to reinstate an employee to his or
her preinjury job in accordance with the requirements of this section
shall pay a civil penalty of one hundred dollars ($100) per day for
each day the employer is in violation of this paragraph, and the
employee shall be entitled to reimbursement for lost wages and work
benefits. Nothing in this paragraph shall preclude an employer from
objecting to the opinion of the treating physician pursuant to
Section 4062 or from obtaining an opinion from an agreed medical
evaluator or qualified medical evaluator pursuant to that section.
However, the employee shall continue to be entitled to reimbursement
for lost wages and work benefits during the time an employer is
objecting to the opinion or obtaining an opinion from an agreed
medical evaluator or qualified medical evaluator. The report of the
agreed medical evaluator or qualified medical evaluator shall be
based on an in-person physical examination of the employee. If the
report of the agreed medical evaluator or the qualified medical
evaluator states that the employee is unable to perform the essential
functions of the employee's regular position, or is unable to
perform the essential functions of the employee's regular position
without the risk of further injury or illness to the employee being
increased due to the effects of the injury or illness, then the
employer shall have no further obligation to pay the employee full
wages and benefits pursuant to this paragraph for any period after
the date of service of the report, the employer shall not be liable
for lost wages and work benefits for a violation pursuant to this
paragraph , and the employer shall not be liable for the one hundred
dollar ($100) per day civil penalty for a violation imposed pursuant
to this paragraph. Where the report of the agreed medical evaluator
or the qualified medical evaluator does not concur with the report
from the treating physician, the employee shall not be liable for the
repayment of lost wages or work benefits received pursuant to this
section.
(5) Any insurer that advises, directs, or threatens an insured
employer, under penalty of cancellation, a raise in premium, or for
any other reason, to discharge or in any manner discriminate against
an employee because the employee testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
(6) It shall be presumed that an employer has discriminated
against an employee in violation of paragraph (1) if the employer
denies an employee the right to predesignate a treating physician in
accordance with subdivision (d) of Section 4600 prior to injury or
illness or denies an employee the right to see his or her properly
predesignated physician or a medical provider to whom the
predesignated physician has referred the employee after the injury or
illness.
(7) Proceedings for increased compensation as provided in
paragraph (1), or for reinstatement and reimbursement for lost wages
and work benefits, are to be instituted by filing an appropriate
petition with the appeals board, but these proceedings may not be
commenced more than one year from the discriminatory act or date of
termination of the employee. The appeals board is vested with full
power, authority, and jurisdiction to try and determine finally all
matters specified in this section subject only to judicial review,
except that the appeals board shall have no jurisdiction to try and
determine a misdemeanor charge. The appeals board may refer and any
worker may complain of suspected violations of the criminal
misdemeanor provisions of this section to the Division of Labor
Standards Enforcement, or directly to the office of the public
prosecutor.
(8) Nothing in this section is intended to limit any rights or
remedies otherwise provided by law.
SEC. 2. SECTION 1. Section 3201.81 of
the Labor Code is amended to read:
3201.81. In the horse racing industry, the organization certified
by the California Horse Racing Board to represent the majority of
licensed jockeys pursuant to subdivision (b) of Section 19612.9 of
the Business and Professions Code is the labor organization
authorized to negotiate the collective bargaining agreement
establishing an alternative dispute resolution system for licensed
jockeys pursuant to Section 3201.7.
SEC. 3. SEC. 2. Section 4658.5 of
the Labor Code is amended to read:
4658.5. (a) (1) Except as provided in Section 4658.6, if the
injury causes permanent partial disability and the injured employee
does not return to work for the employer within 60 days of the
termination of temporary disability, the injured employee shall be
eligible for a supplemental job displacement benefit in the form of a
nontransferable voucher for education-related retraining or skill
enhancement, or both, at state-approved or accredited schools, as
follows:
(A) Up to four thousand dollars ($4,000) for permanent partial
disability awards of less than 15 percent.
(B) Up to six thousand dollars ($6,000) for permanent partial
disability awards between 15 and 25 percent.
(C) Up to eight thousand dollars ($8,000) for permanent partial
disability awards between 26 and 49 percent.
(D) Up to ten thousand dollars ($10,000) for permanent partial
disability awards between 50 and 99 percent.
(2) Except as provided in Section 4658.6, for injuries occurring
on or after January 1, 2008, if the injury causes permanent partial
disability and the injured employee does not return to work for the
employer within 60 days after the disability becomes permanent and
stationary, the employee shall be entitled to a supplemental job
displacement benefit in the form of a nontransferable voucher for
education-related retraining or skill enhancement, or both, at state
accredited schools. The voucher shall not exceed a total amount of
ten thousand dollars ($10,000). The maximum amount of the voucher
available for the payment of tuition, fees, books, and other expenses
required by the school in any one semester, in any one quarter, or
in any other academic term into which the school divides the academic
year shall be prorated for the academic term at a rate not to exceed
five thousand dollars ($5,000) per year.
(b) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return to work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and any other
matters necessary to the proper administration of the supplemental
job displacement benefit.
(c) Within 10 days of the date of the last payment of temporary
disability the employer shall provide to the employee, in the form
and manner prescribed by the administrative director, information
that provides notice of rights under this section. This notice shall
be sent by certified mail.
(d) Except as provided in paragraph (2) of subdivision (a), this
section shall apply to injuries occurring on or after January 1,
2004.
SEC. 2.5. Section 4658.5 of the Labor
Code is amended to read:
4658.5. (a) (1) Except as provided in
Section 4658.6, if the injury causes permanent partial disability and
the injured employee does not return to work for the employer within
60 days of the termination of temporary disability, the injured
employee shall be eligible for a supplemental job displacement
benefit in the form of a nontransferable voucher for
education-related retraining or skill enhancement, or both, at
state-approved or accredited schools, as follows:
(1)
(A) Up to four thousand dollars ($4,000) for permanent
partial disability awards of less than 15 percent.
(2)
(B) Up to six thousand dollars ($6,000) for permanent
partial disability awards between 15 and 25
percent.
(3)
(C) Up to eight thousand dollars ($8,000) for permanent
partial disability awards between 26 and 49
percent.
(4)
(D) Up to ten thousand dollars ($10,000) for permanent
partial disability awards between 50 and 99
percent.
(2) Except as provided in Section 4658.6, for injuries occurring
on or after January 1, 2008, if the injury causes permanent partial
disability and the injured employee does not return to work for the
employer within 60 days after the disability becomes permanent and
stationary, the employee shall be entitled to a supplemental job
displacement benefit in the form of a nontransferable voucher for
education-related retraining or skill enhancement, or both, at state
accredited schools. The voucher shall not exceed a total amount of
ten thousand dollars ($10,000). The maximum amount of the voucher
available for the payment of tuition, fees, books, and other expenses
required by the school in any one semester, in any one quarter, or
in any other academic term into which the school divides the academic
year shall be prorated for the academic term at a rate not to exceed
five thousand dollars ($5,000) per year.
(b) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return to work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and any other
matters necessary to the proper administration of the supplemental
job displacement benefit.
(c) Within 10 days of the date of the last payment of
temporary disability, the employer shall provide to the employee, in
the form and manner prescribed by the administrative director,
information that provides notice of rights under this section. This
notice shall be sent by certified mail.
(d) (1) For injuries occurring on or after January 1, 2008, if the
employee has not returned to work within 60 days of a disability
becoming permanent and stationary, except as provided in Section
4658.6, the voucher shall be provided no later than 74 days after the
date the disability has been determined to be permanent and
stationary. If the percentage of permanent disability has not yet
been determined, the employer shall provide a voucher based on the
reasonable estimate of the percentage of permanent disability, as
required in subdivision (b) of Section 4650. If the percentage of
permanent disability is later determined to be higher than the
estimate, the employer shall provide the additional voucher amount
immediately upon determining the correct percentage of permanent
disability. If the percentage of permanent disability is later
determined to be lower than the estimate, the employer shall reissue
the voucher in the correct amount and notify the employee that any
unused portion of the original voucher in excess of the appropriate
amount is no longer available.
(2) The employer shall notify the employee, in a manner prescribed
by the administrative director, of the determination of the
percentage of permanent disability consistent with this section, and
of any delay in determining the correct percentage of permanent
disability benefits.
(d) This
(e) Except as provided in paragraph (2)
of subdivision (a) and subdivision (d), this section shall
apply to injuries occurring on or after January 1, 2004.
SEC. 4. SEC. 3. Section 4658.6 of
the Labor Code is amended to read:
4658.6. The employer shall not be liable for the supplemental job
displacement benefit within 60 days of the disability becoming
permanent and stationary if the employer offers the injured employee
regular work, modified work, or alternative work in the form and
manner prescribed by the administrative director, lasting for a
period of at least 12 months.
SEC. 4. Section 2.5 of this bill incorporates
amendments to Section 4658.5 of the Labor Code proposed by both this
bill and AB 1636. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2008, (2)
each bill amends Section 4658.5 of the Labor Code, and (3) this bill
is enacted after AB 1636, in which case Section 2 of this bill shall
not become operative.