BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Carole Migden, Chair
Date of Hearing: April 25, 2007 2007-2008 Regular
Session
Consultant: Rodger Dillon Fiscal:No
Urgency:No
Bill No: SB 942
Author: Migden
Amended: April 18, 2007
SUBJECT
Workers' compensation: return to work; supplemental job
displacement benefit eligibility
KEY ISSUES
Should new criteria for evidence of discrimination in
workers' compensation cases be added to the law?
Should new civil penalties for violations of
anti-discrimination provisions be created?
Should certain technical barriers to eligibility for
re-training benefit vouchers be removed?
PURPOSE
To strengthen anti-discrimination provisions of workers'
compensation law relating to injured workers' rights to
return to work and to predesignate their treating
physician. To remove impediments to eligibility for
supplemental job displacement (retraining) benefits.
ANALYSIS
Existing 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. In addition, workers'
compensation law:
Declares that it is the policy of the state that there
should not be discrimination against workers who are
injured in the course or scope of their employment;
Specifies that an employer is guilty of a misdemeanor if
the employer in any manner discriminates against any
employee because the employee filed or made known his or
her intention to file a claim for compensation or an
application for adjudication or because the employee has
received a rating, award, or settlement;
Provides that an employer found guilty of a misdemeanor,
as described, shall be required to reinstate the
employee, reimburse the employee for lost wages and
benefits, and increase the employee's compensation by
one-half - but in no event more than $10,000 - together
with costs and expenses not in excess of $250;
Provides that an insurer is guilty of a misdemeanor if
the insurer advises, directs, or threatens an insured
employer under penalty of cancellation or a raise in
premium or 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 or an application for
adjudication, or has received a rating, award, or
settlement;
Provides that an employer, or an insurer, is guilty of a
misdemeanor if the employer or insurer discriminates
against an employee because the employee testified or
made known their intention to testify in another
employee's case before the Workers' Compensation Appeals
Board.
Existing law also :
Grants specified employees the right to predesignate a
treating physician who shall treat the employee in the
event of a later on-the-job (occupational) injury;
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For injuries occurring on or after January 1, 2004, gives
an injured worker the right to obtain supplemental job
displacement benefits (SJDB) 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:
? Up to $4000 for permanent partial disability (PPD)
awards of less than 15%;
? Up to $6000 for PPD awards between 15% and 25%;
? Up to $8000 for PPD awards between 26% and 49%;
? Up to $10,000 for PPD awards between 50% and 99%;
Specifies that the employer shall not be liable for SJDB
if the employer meets either of the following conditions:
1. 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;
2. Within 30 days of the termination of temporary
disability payments, the employer offers and the
employee rejects, or fails to accept, alternative 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 :
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Adds a declaration that it is the policy of this state
that there should be no discrimination against employees
who attempt to exercise their rights under subdivision
(d) of Section 4600. Section 4600(d) is the labor code
section granting specified employees the right to
predesignate their treating physician.
Specifies that it shall be presumed that an employer has
discriminated against an employee with an occupational
injury 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 being
increased due to the effects of the injury or illness.
The 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.
Specifies that it shall be presumed that an employer has
discriminated against an employee with an occupational
injury if the employer requires the employee to perform
additional physical duties, as a condition of returning
to work, that the employee did not have to do prior to
the workplace injury - unless the additional duties are
reasonably required to accommodate the employee's
disability. Again, the 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.
Establishes penalty provisions for an employer that
refuses to reinstate an employee in accordance with the
requirements of the bill in the amount of $100 per day
for each day in violation, plus the employee's full wages
and benefits.
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Allows the employer to object to the opinion of the
treating physician and to have the employee undergo an
evaluation by an agreed medical evaluator (AME) or
qualified medical evaluator (QME), as set forth in L.C.
Section 4062, if the employer pays the employee his or
her full wages and benefits due for that period. The
evaluation must be based on an in-person physical
examination.
Provides that if the report of the AME or QME states that
the employee is unable to perform the full requirements
of the employee's regular position, or is unable to do so
without the risk of further injury or illness to the
employee or the risk of injury being increased due to the
effects of the injury or illness, then the employer has
no further obligations to pay the employee full wages and
benefits for any period after the date of service of the
report and is not liable for penalties. The bill also
provides that the employee is not liable for repayment of
any wages, benefits, or penalty money received if the AME
or QME report does not concur with the report from the
treating physician.
Specifies that it shall be presumed that an employer has
discriminated against an employee if the employer denies
a qualified employee the right to predesignate a treating
physician prior to an injury or illness or if the
employer denies an employee the right to see that
predesignated physician or a medical provider to whom the
predesignated physician has referred the employee after
occupational injury or illness.
Makes a technical correction [page 6, line 5 of the
bill], assigning the appropriate code reference relating
to the alternative dispute resolution system in the horse
racing industry.
With respect to supplemental job displacement benefits
(SJDB), for injuries occurring on or after January 1,
2008, SB942 changes the trigger date for eligibility from
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60 days from the termination of temporary disability
payments to 60 days after the disability becomes
permanent and stationary, thereby allowing SJDB in cases
where temporary disability benefits ended some
significant time before an injured worker reached maximum
medical improvement (i.e., permanent and stationary
condition).
Provides that the SJDB 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 SJDB would be limited to
$10,000.
Specifies that the employer shall not be liable for SJDB
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.
COMMENTS
1. Need for the Bill?
What evidence is there that injured workers are being
refused the right to return to work after receiving a
doctor's clearance?
What evidence exists that injured workers are being denied
their rights with respect to predesignation of a treating
physician?
With respect to these two issues, the author and the
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supporters believe SB942 supports the important
principles of the injured workers rights to return to
work and to predesignate. In addition, this bill is said
to be a preventative measure - that strengthening
anti-discrimination measures and attaching fines to
violations will deter potential discrimination. There
have been no studies known to the staff of the committee
documenting the incidence of the two forms of
discrimination as described in the bill. However, the
committee and sponsors have received anecdotal reports of
this discrimination.
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 SJDB - 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: (a)
an injured worker is not going to be able to return to
the previous job sometime before the termination of TD,
and/or (b) 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).
2. Proponent Arguments
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
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argue that the passage of SB899 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.
SB942, supporters say, would 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 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.
3. Opponent Arguments
Opponents argue that SB942 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. SB942'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,
SB942 proposes that the employer will be allowed to go to
an AME over the issue of the clearance to return to work
only if the employer reinstates the employee, which
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provision opponents claim is neither needed nor
appropriate.
SUPPORT
California Labor Federation, AFL-CIO (Sponsor)
California Teamsters Public Affairs Council (Sponsor)
American Federation of State, County and Municipal
Employees, AFL-CIO
California Applicants' Attorneys Association (CAAA)
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Federation of Teachers
California Professional Firefighters (CPF)
California School Employees Association, AFL-CIO
California State Employees Association (CSEA)
Engineers and Scientists of California
International Association of Fire Fighters
International Longshore and Warehouse Union
Peace Officers Research Association of California (PORAC)
Professional and Technical Engineers Local 21, IFPTE
Service Employees International Union (SEIU)
Strategic Committee of Public Employees, Laborers'
International Union of N. America
UNITE HERE!
United Food & Commercial Workers Union, Western States
Council
OPPOSITION
American Insurance Association (AIA)
Association of California Insurance Companies (ACIC)
Association of California Water Agencies (ACWA)
California Association of Joint Powers Authorities (CAJPA)
California Chamber of Commerce
California Coalition on Workers' Compensation (CCWC)
California Manufacturers and Technology Association (CMTA)
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Senate Committee on Labor and Industrial Relations
California Spa & Pool Industry Education Council
California State Association of Counties Excess Insurance
Authority (CSAC-EIA)
Independent Maintenance Contractors Association
League of California Cities
Los Angeles County Board of Supervisors
Regional Council of Rural Counties
Torrance Area Chamber of Commerce
* * *
Hearing Date: April 25, 2007 SB
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Consultant: Rodger Dillon
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Senate Committee on Labor and Industrial Relations