BILL NUMBER: SB 942 AMENDED
BILL TEXT
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.
(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 provide that if, after the employee has been
disabled from work as a result of injury or illness arising out of,
or in the course of, employment pursuant to which the employee is
eligible to receive workers' compensation benefits, the employee is
willing and available to return to work, "there
there is a rebuttable presumption that an employer has
discriminated against an employee if" here if
the employer refuses to reinstate the employee to his or her
regular position with full wages and benefits within 5 working days
after receipt of a written statement by the employee's treating
physician that the employee is able to perform the full requirements
of the employee's regular position, notwithstanding the inherent
risks of the position, without risk of further injury to the employee
or others being increased due to the effects of
the injury or illness. The bill would provide that it shall be
presumed that an employer has discriminated against an employee in
violation of these provisions if the employer requires the 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.
(2) 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 receive a supplemental job displacement benefit, as
specified. Existing law further provides that an employer shall not
be liable for supplemental job displacement benefits if, within 30
days of termination of temporary disability indemnity payments, the
employer offers, and the employee rejects, or fails to accept, in the
form and manner prescribed by the administrative director, modified
work, accommodating the employee's work restrictions, lasting at
least 12 months.
This bill would, instead, provide that, for injuries occurring on
or after January 1, 2008, if the injury causes compensable
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 receive a supplemental job displacement benefit,
and would revise the amounts of benefits an injured employee would be
eligible to receive, as specified.
(3) 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, modified work, or
alternative work, and, the employee rejects, or fails to accept,
modified or alternative work. It would also make a technical,
clarifying change.
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) If, after the employee has been disabled by an injury or
illness arising out of, or in the course of, employment, the employee
is willing and available to return to work, it shall be presumed
that an employer has discriminated against an employee in violation
of paragraph (1) if the employer refuses to reinstate the employee to
full wages and benefits within five working days after receipt of a
written statement by the treating physician that the employee is able
to perform the full requirements of the employee's regular position,
notwithstanding the risks inherent in the position, without a risk
of further injury to the employee or others being
increased due to the effects of the injury or illness. This
presumption is rebuttable and may be controverted by other
a preponderance of the evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it.
(B) It shall be presumed that an employer has discriminated
against an employee in violation of paragraph (1) if the employer
requires the 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. This presumption is rebuttable and may be controverted by
other evidence, but unless so controverted, the appeals board is
bound to find in accordance with it.
(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 penalty of one hundred dollars ($100) per day for each
day the employer is in violation of this paragraph, plus the employee'
s full wages and 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 if the employer pays the employee his or her full wages and
benefits due for that period. 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 full requirements of the
employee's regular position, or is unable to perform the full
requirements of the employee's regular position without the risk of
further injury or illness to the employee or the risk of
injury to others 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, and
the employer shall not be liable for penalties for a violation
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 any wages, benefits, or penalty moneys
received.
(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 employer testified or made known his or her
intention to testify in another employee's case before the appeals
board, is guilty of a misdemeanor.
(5)
(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.
(6)
(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.
SEC. 2. 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. 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
compensable disability 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. 4. 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.