BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                 AB 947
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         ASSEMBLY THIRD READING
         AB 947 (Solorio)
         As Amended  April 27, 2011
         Majority vote 

          INSURANCE           8-4                                          
          
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         |Ayes:|Solorio, Charles          |     |                          |
         |     |Calderon, Carter, Feuer,  |     |                          |
         |     |Hayashi, Skinner, Torres, |     |                          |
         |     |Wieckowski                |     |                          |
         |     |                          |     |                          |
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          -------------------------------- 
         |Nays:|Hagman, Grove, Miller,    |
         |     |Olsen                     |
         |     |                          |
          -------------------------------- 
          SUMMARY  :  Allows payment of temporary disability (TD) benefits for 
         more than 104 weeks under certain circumstances.  Specifically, 
          this bill  :  

         1)Authorizes, for injuries occurring on or after January 1, 2012, 
           payment of TD benefits for more than 104 weeks during a period 
           within five years of the date of injury, but in no case more 
           than 240 weeks of TD benefits.

         2)Limits the circumstances where the extended TD benefits are 
           available to cases where medical treatment beyond 104 weeks is 
           needed to achieve maximum medical improvement (MMI), and where 
           the injured worker has not caused a delay in medical treatment 
           due to a willful failure to undergo recommended treatment that 
           is necessary to achieve MMI.

          EXISTING LAW  :

         1)Provides for a comprehensive system of workers' compensation 
           benefits for employees who are injured on the job, including TD 
           benefits, which are a partial wage replacement benefit, during 
           the period of time that an injured worker is unable to work 
           while recovering from the injury.

         2)Specifies that, for injuries on or after April 19, 2004, an 








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           injured worker is entitled to TD benefits for up to 104 weeks 
           within a two year period commencing with the first payment of TD 
           benefits.

         3)Specifies that, for injuries on or after January 1, 2008, an 
           injured worker is entitled to TD benefits for up to 104 weeks 
           within a five year period commencing with the date of injury.

         4)Provides that workers with certain listed injuries or conditions 
           are not subject to the 104 week cap, but instead may be 
           compensated with TD benefits for up to 240 weeks during the five 
           year period commencing with the date of injury.

         5)Provides that TD benefits are payable until the injured worker 
           is "permanent and stationary" (P&S), which is the point where 
           the injured worker's medical condition is not likely to improve 
           with additional treatment.

          FISCAL EFFECT  :  Undetermined but potentially significant costs to 
         the state's workers' compensation program if more injured state 
         employees receive TD benefits for a longer period of time while 
         recovering from their injuries.
          COMMENTS  :  

          1)Purpose  .  The author introduced this bill to address 
           circumstances where medical treatment that is required to cure 
           the injured worker's injuries takes longer, through no fault of 
           the injured worker, than the 104 weeks of TD benefits allowed by 
           law.  These are cases involving substantial injuries where the 
           injured worker is simply not able to work during the recovery 
           period.  The most common example would be cases where 
           conservative treatments are attempted for an extended period, 
           but ultimately surgery, with an extended recovery period, is 
           deemed the appropriate treatment.

          2)Retroactivity concerns  .  In the prior version of the bill, the 
           extended TD benefits were not limited to injuries occurring on 
           or after the bill's effective date.  Insurers expressed concerns 
           that they would be obligated to pay benefits for injuries where 
           they had not collected premium for the full scope of the risk.  
           The current version of the bill cures this problem by ensuring 
           that the new rules apply only for injuries that occur on or 
           after January 1, 2012.









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         3)P&S vs. MMI  .  The "permanent and stationary" standard has long 
           been the rule in California law to measure when TD ends, and 
           permanent disability and other benefits begin.  In 2004, the 
           reform legislation adopted the American Medical Association 
           (AMA) Guides to the Evaluation of Permanent Impairment, 5th 
           Edition, as the source for measuring impairment suffered by an 
           injured worker.  The Guides use the terminology "maximum medical 
           improvement," defined as a medical condition that "is well 
           stabilized and unlikely to change substantially in the next year 
           with or without medical treatment."  It is the functional 
           equivalent of P&S.

          4)Decisions left to physicians  .  The bill provides that it is up 
           to the physician treating the injured worker to determine 
           whether continued treatment is needed.  If it is needed, the 
           injured worker can receive additional TD for the duration of the 
           treatment and related recovery period.  While the 104 week 
           limitation was adopted as a hard cap, the specific duration was 
           viewed, in 2004, as a reasonable estimation of how long it would 
           take in most cases to reach P&S.  It is clear, however, that 
           some cases are more complex, and longer medical treatment is 
           needed.  In this regard, the bill also provides that extended TD 
           benefits are not available if the medical treatment is 
           continuing due to willful delays caused by the injured worker.

          5)Opposition  .  Employers are opposed to the bill, arguing that the 
           104 week cap was one of the major reforms that have helped 
           control workers' compensation costs.  In most cases, they argue, 
           extending the duration of TD benefits does little to improve 
           medical treatment, but rather causes cases to be delayed, with 
           negative implications for both injured workers and employers.  
           Employers also argue that the language of the bill, even with 
           the new amendments, is too open-ended and would allow any 
           physician to extend TD benefits in most cases.  In particular, 
           the California Association of Joint Powers Authorities (CAJPA) 
           suggests that a study be conducted to determine whether there 
           are cases that require extended TD, and to identify those types 
           of cases. 
          

         Analysis Prepared by  :    Mark Rakich / INS. / (916) 319-2086


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