BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 13, 2011 20011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: SB 407
Author: Cannella
Version: As Amended March 25, 2011
SUBJECT
Jail inmates: workers' compensation.
KEY ISSUE
Should the Legislature require workers' compensation benefit
limitations on inmates in city and county jails, industrial
farms, and road houses, similar to the limitations on inmates in
state penal and correctional institutions?
PURPOSE
To create limitations on the ability of inmates in city, county,
and city and county jails to utilize the workers' compensation
system in the event of an injury during their incarceration,
including taking into account previous wages when calculating
temporary and permanent disability indemnity benefits.
ANALYSIS
Existing law establishes a workers' compensation system that
provides benefits to an employee who suffers from an injury or
illness that arises out of and in the course of employment,
irrespective of fault. This system requires all employers to
secure payment of benefits by either securing the consent of the
Department of Industrial Relations to self-insure or by securing
insurance against liability from an insurance company duly
authorized by the state.
Existing law provides for the payment of indemnity benefits if
the occupational injury causes temporary or permanent disability
which prevents the worker from returning to his or her job. In
the case of temporary disability payments, the benefit is
two-thirds of the weekly loss in wages due to disability for up
to 104 weeks (Labor Code ��4650, 4653, 4654 and 4656).
Existing law also requires the minimum and maximum average
weekly earnings for temporary disability benefits annually by an
amount equal to the percentage increase in the state average
weekly wage as compared to the prior year (Labor Code �4453) .
Existing law provides that an inmate of a state prison or
correctional facility is entitled to workers' compensation
benefits for an injury arising during the course of assigned
employment subject to certain limitations (Labor Code �3370).
Among the limitations are:
a) The inmate was not injured as a result of an assault in
which he or she was the initial aggressor, or intentionally
injured himself or herself;
b) The inmate is not entitled to any temporary disability
indemnity benefits while incarcerated in a state prison;
c) No benefits shall be paid to an inmate while he or she
is incarcerated. The period of benefit payment shall
instead commence upon release from incarceration. However,
if an inmate released from prison is receiving workers'
compensation benefits and is reincarcerated in a city or
county jail, or a state prison, the benefits shall cease
immediately and not be paid during the reincarceration.
d) In determining temporary and permanent disability
indemnity benefits for an inmate, the average weekly
earnings shall be taken at not more than the minimum amount
established in law.
e) No temporary disability benefits are payable upon
release for the period during which the inmate was
incarcerated in a state prison.
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
f) Where a dispute exists respecting an inmate's workers'
compensation benefits, the inmate may file an appeal with
the Workers' Compensation Appeals Board (WCAB) at any time
during the inmate's incarceration.
g) The Department of Corrections must present each inmate
of a state prison or correctional facility, prior to his or
her first work assignment, a printed statement of his or
her rights under existing law, and a description of how to
file for benefits. This notice must be posted in a
conspicuous place at each place where an inmate works.
h) The Department of Corrections has medical control over
treatment provided an injured inmate while incarcerated in
a state prison, except that in serious cases, the inmate is
entitled to the services of a consulting physician.
i) The workers' compensation system must serve as the
exclusive remedy against the state for all injuries
occurring under work assignment.
Existing law provides that dependents of a state prison inmate
may receive temporary and permanent disability benefits which
would otherwise be payable to an inmate during incarceration
based on an injury sustained prior to incarceration. Dependents
are defined as the inmate's spouse or children, and an inmate's
former spouse due to divorce and the inmate's children from that
marriage (Labor Code �3370).
Existing law specifies that when a person confined in a city or
county jail, industrial farm, or road camp who is required to
engage in the prevention or suppression of forest, brush, or
grass fires, and is injured or dies while so working, is
considered to be an employee of the county or city for purposes
of workers' compensation and, thereby, is eligible for workers'
compensation benefits (Penal Code �4017).
This bill would create certain limitations for inmates of a
county, city, or city and county for prisoners is entitled to
workers' compensation benefits for an injury arising during the
course of assigned employment subject. These restrictions are:
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
a) The inmate was not injured as a result of an assault in
which he or she was the initial aggressor, or intentionally
injured himself or herself;
b) The inmate is not entitled to any temporary disability
indemnity benefits while incarcerated in a county, city, or
city and county jail, industrial farm, or road camp;
c) No benefits shall be paid to an inmate while he or she
is incarcerated. The period of benefit payment shall
instead commence upon release from incarceration. However,
if an inmate released from prison is receiving workers'
compensation benefits and is reincarcerated in a city or
county jail, or a state prison, the benefits shall cease
immediately and not be paid during the reincarceration.
d) In determining temporary and permanent disability
indemnity benefits for an inmate, the average weekly
earnings shall be taken at not more than the lesser of the
minimum amount established in law or 1.5 times the inmate's
average weekly earnings from all employers .
e) No temporary disability benefits are payable upon
release for the period during which the inmate was
incarcerated in a state prison.
f) The workers' compensation system must serve as the
exclusive remedy against the city, county, or city and
county for all injuries occurring under work assignment.
COMMENTS
1. Background:
As was stated above, California state law provides for the
provision of temporary disability indemnity benefit through
the workers' compensation system if the injury is
occupational. For 2011, the minimum amount of a temporary
disability indemnity benefit is $148 per week, and the maximum
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
benefit amount is $986.69. If an inmate in a city, county, or
city and county jail qualified for temporary disability
benefits, these limits would be in effect.
SB 407 would to take into account an inmate's wage history,
which could lower temporary and permanent disability indemnity
benefits if the inmate's average weekly wages were less than
$98 per week. Between 1990 and 2003, temporary disability
indemnity benefits were calculated with earning taken into
account, but the minimum temporary disability indemnity amount
was significantly higher (between $168 and $189, or between
$232.50 and $307.10 when adjusted for inflation).
2. Differences Between SB 407 and Existing Law for State Prisons:
SB 407 largely follows the format of Labor Code �3370, which
sets the certain limitations on how workers incarcerated in
state prisons and correctional facilities receive workers'
compensation benefits. However, this bill does not follow
existing law in several areas:
a) Notice to prisoners. Labor Code �3370 requires the
state Department of Corrections to present to each state
prisoner, prior to a work assignment, a printed statement
of his or her rights under the workers' compensation laws,
and a description of how to file for workers' compensation
benefits. The statement must be posted in a conspicuous
place at each place where an inmate works. This bill does
not have this requirement.
b) Control of medical treatment. Labor Code �3370
specifies that the state Department of Corrections shall
have medical control over treatment provided an injured
inmate while incarcerated in a state prison, except that in
serious cases, the inmate is entitled to the services of a
consulting physician. This bill does not specify to what
extent the medical treatment will be controlled by the
department which operates the city or county jail, or when
an injured inmate may obtain a consulting physician.
c) Payments of temporary and permanent disability benefits
to dependents. Labor Code �3370 specifies that temporary
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
and permanent disability benefits which would otherwise be
payable to an inmate during incarceration based on an
injury sustained prior to incarceration shall be paid to
the dependents of the inmate (spouse or children). This
bill is silent on prior injuries.
d) Workers' Compensation Appeals. Labor Code �3370 allows
an inmate to appeal to the Workers' Compensation Appeals
Board regarding his or her workers' compensation benefits.
This bill does not include appellate access.
e) Workers' Compensation Attorneys. Labor Code �3371
requires that if the issues surrounding the occupational
injury are complex, or if inmate requests it, the
Department of Corrections must provide a list of qualified
workers' compensation attorneys. This bill does not have
this requirement.
f) DOSH Protections . Labor Code �6304.2 defines a state
prisoner assigned to a work project as an employee for
purposes of receiving safety protections under the
California Occupational and Health Act implemented by the
state Division of Occupational Safety and Health (DOSH).
This bill does not extend that same right to city and
county inmates so assigned.
3. Temporary Disability, Permanent Disability, and Prior Wages:
As was stated earlier, SB 407 would take into account previous
earnings when computing both temporary and permanent
disability benefits. In the case of temporary disability
benefits, if the inmate made $98 per week, then his or her
benefit amount would remain at the minimum amount. However,
if the inmate made less than $98 per week, or more than $222
per week, he or she would lose benefit dollars. For an
unemployed worker, this could mean that he or she could be
denied temporary or permanent disability benefits, even if his
or her placement in the city, county, or city and county jail
could be brief in nature while the duration of the
occupational injury is not. This is particularly true of
permanent disability indemnity benefits, where the injury has,
by definition, a permanent impact on an individual's ability
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations
to work.
Moreover, those benefits would not be available to the
individual in the city, county, or city and county jail, nor
his or her family, until the end of that individual's
incarceration, which may be several years away. While some
local governments report that delaying or denying these
benefits would pose significant cost savings, the Committee
may wish to consider if curtailing constitutional guarantees
of employers curing injured employees is an appropriate area
for cost savings, and the impact of these cost savings.
4. Double Referred to Senate Public Safety Committee:
Should the Committee pass out SB 407, this bill would be sent
to the Senate Public Safety Committee for a second policy
hearing.
5. Proponent Arguments :
Proponents note that current budgetary decisions will shift
larger and larger numbers of inmates to the local jails and
facilities of cities and counties. These inmates will be
assigned work in these facilities, and proponents note that it
makes sense to treat these inmates in a similar manner to
state inmates. Proponents also note that SB 407 would give
them a greater degree of control over an injured inmate's
medical treatment, freeing deputies from non-law enforcement
activities. Finally, proponents note that the taking into
account the previous wages of the injured inmate will allow
for important cost savings.
6. Opponent Arguments :
Opponents note that local inmates are providing needed
services under dangerous conditions, and that these services
can lead to serious injuries. Opponents note that temporary
disability indemnity benefits are the only benefits an injured
worker can count on when the worker is temporarily unable to
work, which is why the Legislature set a minimum benefit
amount. Opponents also note that depriving inmates of this
safety net laves them with few options, increasing the chances
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 7
Senate Committee on Labor and Industrial Relations
of recidivism and lowering the chances of future employment.
Finally, opponents note that SB 407 could lower the incentives
for local governments to maintain safe working environments on
risky job assignments.
7. Prior Legislation :
AB 2247 (Niello) of 2010 was very similar to this bill. AB
2247 failed passage in the Assembly Insurance Committee.
AB 516 (Niello) of 2009 utilized wages to compute the minimum
temporary and permanent disability indemnity benefit. AB 516
failed passage in the Assembly Insurance Committee.
SB 627 (Behr) Statutes of 1976, Chapter 1347, creates the
workers' compensation benefit limitations for inmates in state
penal and correctional institutions.
AB 2624 (Cullen) Statutes of 1971, Chapter 907, empowers local
governments to utilize inmates in city and county jails for
fire suppression and places those inmates under the workers'
compensation system in the event of an injury during fire
suppression activities.
SUPPORT
County of Stanislaus
OPPOSITION
California Labor Federation, AFL-CIO
California Applicants Attorney Association
Hearing Date: April 13, 2011 SB 407
Consultant: Gideon L. Baum Page 8
Senate Committee on Labor and Industrial Relations