BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 942
Author: Migden (D)
Amended: 9/6/07
Vote: 21
SEN. LABOR & INDUSTRIAL RELATIONS COMMITTEE : 3-2, 4/25/07
AYES: Migden, Kuehl, Padilla
NOES: Wyland, Ackerman
SENATE FLOOR : 23-15, 5/31/07
AYES: Alquist, Calderon, Cedillo, Corbett, Ducheny,
Florez, Kehoe, Kuehl, Lowenthal, Machado, Migden, Negrete
McLeod, Oropeza, Padilla, Perata, Romero, Scott,
Simitian, Steinberg, Torlakson, Vincent, Wiggins, Yee
NOES: Aanestad, Ackerman, Ashburn, Cogdill, Correa, Cox,
Denham, Dutton, Harman, Hollingsworth, Maldonado,
Margett, McClintock, Runner, Wyland
NO VOTE RECORDED: Battin, Ridley-Thomas
ASSEMBLY FLOOR : Not available
SUBJECT : Workers compensation: disability
SOURCE : California Labor Federation
California Teamsters Public Affairs Council
DIGEST : This bill removes impediments to eligibility for
supplemental job displacement (retraining) benefits.
Assembly Amendments (1) delete provisions that related to
CONTINUED
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rehiring and that required an employer to return employees
to work within five days of receiving notice that they are
able and (2) double-joint the bill to AB 1636 (Mendoza).
ANALYSIS : .
Existing law:
1.For injuries occurring on or after January 1, 2004, gives
an injured worker the right to obtain supplemental job
displacement benefits in the form of a non-transferable
voucher for education-related retraining or skill
enhancement at state-approved or accredited schools if
the injury causes permanent partial disability and the
injured worker does not return to work within 60 days of
the termination of temporary disability. If a worker
qualifies, the vouchers are distributed as follows:
A. Up to $4000 for permanent partial disability
awards of less than 15 percent.
B. Up to $6000 for PPD awards between 15 percent and
25 percent.
C. Up to $8000 for PPD awards between 26 percent and
49 percent
D. Up to $10,000 for PPD awards between 50 percent
and 99 percent.
2.Specifies that the employer shall not be liable for
supplemental job displacement benefits if the employer
meets either of the following conditions:
A. Within 30 days of the termination of temporary
disability payments, the employer offers and the
employee rejects, or fails to accept, modified work
(as defined in L.C. 4658.1(b)] accommodating the
employee's work restrictions, lasting at least 12
months.
B. Within 30 days of the termination of temporary
disability payments, the employer offers and the
employee rejects, or fails to accept, alternative
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work [as defined in L.C. 4658.1(c)] lasting at least
12 months. The employee must have the ability to
perform the essential functions of the job provided.
This bill:
1.With respect to supplemental job displacement benefits,
for injuries occurring on or after January 1, 2008, SB
942 changes the trigger date for eligibility from 60 days
from the termination of temporary disability payments to
60 days after the disability becomes permanent and
stationary, thereby allowing supplemental job
displacement benefits in cases where temporary disability
benefits ended some significant time before an injured
worker reached maximum medical improvement (i.e.,
permanent and stationary condition).
2.Provides that the supplemental job displacement benefits
vouchers shall be available for the uses described in
current law, but the amount of the voucher payable by
semester or quarter or other academic term into which the
school divides the academic year shall be prorated for
the academic term at a rate not to exceed $5000 per year.
Total supplemental job displacement benefits would be
limited to $10,000.
3.Specifies that the employer shall not be liable for
supplemental job displacement benefits if the employer
offers the employee regular work, modified work, or
alternative work in the form and manner prescribed by the
administrative director of the Division of Workers'
Compensation, lasting for a period of at least 12 months.
Taking into account the definitions of modified work and
alternative work in existing L.C. Sections 4658.1 (b) &
(c), the bill eliminates the redundant language in
Section 4658.6.
4.Makes a technical correction to a section of law
concerning alternative dispute resolutions in the horse
racing industry.
5.Double-joints this bill to AB 1636 (Mendoza) in order to
avoid chaptering out problems.
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Comments
What evidence is there that the eligibility window for the
Supplemental Job Displacement Benefits training vouchers
needs to be changed?
The Commission on Health and Safety and Workers'
Compensation (CHSWC) has reported to the committee that
they have conducted a series of round-table discussions on
this matter. CHSWC states that employer, injured worker,
and insurance company representatives agreed in these
meetings that the current trigger for eligibility for
supplemental job displacement benefits, allowing
eligibility when the injured worker does not return to work
within 60 days of the termination of temporary disability,
effectively deprives some injured workers of the right to
retraining benefits who should not be so deprived. It may
be apparent that (1) an injured worker is not going to be
able to return to the previous job sometime before the
termination of TD, and/or (2) with the most serious
injuries, the two-year limit on TD may cause a worker to
pass the deadline for SJDB before his or her condition has
reached maximum medical improvement (i.e., permanent and
stationary).
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/9/07) (Prior to latest amendments)
California Labor Federation, AFL-CIO (co-source)
California Teamsters Public Affairs Council (co-source)
American Federation of State, County and Municipal
Employees, AFL-CIO
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Federation of Teachers
California Professional Firefighters
California School Employees Association, AFL-CIO
California State Employees Association
Engineers and Scientists of California
International Association of Fire Fighters
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International Longshore and Warehouse Union
Peace Officers Research Association of California
Professional and Technical Engineers Local 21,
Service Employees International Union
Strategic Committee of Public Employees, Laborers'
International Union of N. America
UNITE HERE!
United Food & Commercial Workers Union, Western States
Council
OPPOSITION : (Verified 5/9/07) (Prior to latest
amendments)
American Insurance Association
Association of California Insurance Companies
Association of California Water Agencies
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition on Workers' Compensation
California Manufacturers and Technology Association
California Spa & Pool Industry Education Council
California State Association of Counties Excess Insurance
Authority
Independent Maintenance Contractors Association
League of California Cities
Los Angeles County Board of Supervisors
Regional Council of Rural Counties
Torrance Area Chamber of Commerce
ARGUMENTS IN SUPPORT : Proponents state this bill makes
essential changes to ensure that injured workers who are
physically able to go back to work are not wrongfully kept
off the job. They argue that the passage of SB 899 reduced
permanent disability benefits so significantly some
employers find it cheaper to keep workers on PD than put
the worker back to work. Others have used the system to
get rid of older workers, who have often been on the job
longer and who tend to have higher wages and better
benefits. Employers are refusing to put workers back on
the job even after they are cleared to return by a treating
physician. This bill, supporters say, will reduce conflict
between employers and employees by providing clear rules
for the return to work process that respect the
recommendation of the treating physician, penalize
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employers who discriminate against injured workers,
prohibit employers from changing job requirement to prevent
workers from returning, and prohibit discrimination against
a worker for exercising their right to predesignate their
doctor. This bill would also allow the appropriate and
timely provision of supplemental job displacement benefits.
ARGUMENTS IN OPPOSITION : Opponents argue that this bill
creates unreasonable requirements for employers when
bringing injured employees back to work. The bill does not
take into account many typical scenarios that may justify a
delay in return to work, including changes in the job or
questions over the medical release. This bill's
presumption of a Labor Code Section 132a violation puts the
employer on the defensive; decisions regarding return to
work should be made based on the facts, not fear about
getting penalized, sued, or committing a crime. Opponents
object to the creation of a new Labor Code Section 132a
cause of action. This provision is unnecessary and simply
opens the door to more claims. Opponents emphasize that
historically the burden of proving discrimination has been
placed on the employee, but this bill reverses that by
establishing a rebuttable presumption. Moreover, this bill
proposes that the employer will be allowed to go to an
agreed medical evaluator over the issue of the clearance to
return to work only if the employer reinstates the
employee, which provision opponents claim is neither needed
nor appropriate.
NC:cm 9/10/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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