BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 942|
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THIRD READING
Bill No: SB 942
Author: Migden (D)
Amended: 5/8/07
Vote: 21
SEN. LABOR & INDUSTRIAL RELATIONS COMMITTEE : 3-2, 4/25/07
AYES: Migden, Kuehl, Padilla
NOES: Wyland, Ackerman
SUBJECT : Workers compensation
SOURCE : California Labor Federation
California Teamsters Public Affairs Council
DIGEST : This bill strengthens anti-discrimination
provisions of workers' compensation law relating to injured
workers' rights to return to work and predesignate their
treating physician. The bill removes 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:
1.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.
CONTINUED
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2.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.
3.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.
4.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.
5.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:
1.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
2.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
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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.
3.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
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.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.
2.Specifies that an employer shall reinstate an employee
to his or her preinjury job within five working days
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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.
3.Specifies that no employer shall require an 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. An employer shall reimburse the
employee for lost wages and work benefits for any time
the employee is unable to work due to the imposition of
additional physical duties that are not reasonably
required to accommodate the disability.
4.Establishes civil 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, and the employee shall be
entitled to reimbursement for lost wages and benefits.
5.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 or qualified
medical evaluator, as set forth in L.C. Section 4062.
The employee shall continue to be entitled to
reimbursement for lost wages and benefits during the
time an employer is objecting. The evaluation must be
based on an in-person physical examination.
6.Provides that if the report of the agreed medical
evaluator or qualified medical evaluator states that the
employee is unable to perform the essential functions 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
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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. The bill also
provides that the employee is not liable for repayment
of any lost wages or benefits received pursuant to this
section, if the agreed medical evaluator or qualified
medical evaluator report does not concur with the report
from the treating physician.
7.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.
8.Makes a technical correction assigning the appropriate
code reference relating to the alternative dispute
resolution system in the horse racing industry.
9.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).
10.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.
11.Specifies that the employer shall not be liable for
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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.
Comments
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
supporters believe this bill 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
supplemental job displacement benefits, allowing
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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)
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
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)
American Insurance Association
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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
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
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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 5/10/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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