Bill Text: CA SB407 | 2011-2012 | Regular Session | Amended
Bill Title: Jail inmates: workers' compensation.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB407 Detail]
Download: California-2011-SB407-Amended.html
BILL NUMBER: SB 407 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 25, 2011
INTRODUCED BY Senator Cannella
FEBRUARY 16, 2011
An act to amend Sections 3370 and 4453 of
add Section 3370.1 to the Labor Code, relating to workers'
compensation benefits.
LEGISLATIVE COUNSEL'S DIGEST
SB 407, as amended, Cannella. Jail inmates: workers' compensation
benefits: temporary disability benefits .
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, that generally requires employers to secure
the payment of workers' compensation, including medical treatment,
for injuries incurred by their employees sustained in the course of
employment.
Existing law provides that each inmate of a state penal or
correctional institution shall be entitled to workers' compensation
benefits for injury arising out of and in the course of assigned
employment and for the death of the inmate if the injury proximately
causes death, subject to certain conditions , as specified
. Existing law provides that whenever a person
confined in a county jail, industrial farm, road camp, or city jail
suffers injuries or death while working in the prevention or
suppression of forest, brush, or grass fires, he or she shall be
considered to be an employee of the county or city, respectively, for
purposes of workers' compensation.
This bill would provide that inmates of a city or county
jail shall also be entitled to workers' compensation benefits, as
provided each inmate of a city, county, or city and
county that provides workers' compensation benefits for an inmate of
a jail, is entitled to workers' compensation benefits for injuries
arising out of, and i n the course of, assigned
employment, and for the death of the inmate if the injury
proximately causes the death, subject to specified conditions .
Existing law requires the Department of Corrections and
Rehabilitation to present each inmate of a state penal or
correctional institution, prior to his or her first assignment to
work at the institution, with a printed statement of his or her
rights in regard to the above provisions, and a description of the
procedures to be followed in filing for workers' compensation
benefits.
This bill would require a city or county jail facility to present
each inmate with a printed statement of his or her rights in regard
to the above provisions, and a description of the procedures to be
followed in filing for workers' compensation benefits. This bill
would provide that inmates in a city or county jail shall have any
temporary disability benefits from a preexisting injury sent to the
dependents of the inmate, or, if the inmate has no dependents, to be
held in trust by the jail facility.
By imposing new duties on a city or county jail, this bill would
impose a state-mandated local program.
Existing law provides that the Department of Corrections and
Rehabilitation shall have medical control over treatment provided an
injured inmate while incarcerated in state prison. Existing law
provides that in serious cases the inmate is entitled, upon request,
to the services of a consulting physician.
This bill would state that a city or county jail facility's staff
shall have medical control over treatment provided an injured inmate
while incarcerated in a city or county jail. This bill would provide
that in serious cases the inmate of a city or county jail is
entitled, upon request, to the services of a consulting physician.
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, that generally requires employers to secure
the payment of workers' compensation, including medical treatment,
for injuries incurred by their employees that arise out of, or and in
the course of, employment. Existing law provides certain methods for
determining workers' compensation benefits payable to a worker or
his or her dependents for purposes of temporary disability, permanent
total disability, permanent partial disability, and in case of
death. Existing law requires, in computing average annual earnings
for the purposes of temporary disability indemnity and permanent
total disability indemnity only, that the average weekly earnings be
taken, for injuries occurring on or after January 1, 2006, at not
less than $189, nor more than $1,260 or 1.5 times the state average
weekly wage, whichever is greater, and commencing January 1, 2007,
and each January thereafter, requires that those limits be increased
by an amount equal to the percentage increase in the state average
weekly wage as compared to the prior year.
This bill would require, in computing average annual earnings for
the purposes of temporary disability indemnity and permanent total
disability indemnity only, on or after January 1, 2012, that the
average weekly earnings be taken at not less than the lesser of $189
or 1.5 times the employees's average weekly earnings from all
employers, nor more than $1,260 or 1.5 times the state average weekly
wage, whichever is greater.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3370.1 is added to the
Labor Code , to read:
3370.1. Each inmate of a county, city, or city and county that
provides workers' compensation benefits for an inmate of a jail shall
be entitled to the workers' compensation benefits provided by this
division for injury arising out of and in the course of assigned
employment and for the death of the inmate if the injury proximately
causes death, subject to all of the following conditions:
(a) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(b) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a county, city, or city and
county jail, industrial farm, or road camp.
(c) Benefits shall not be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence
upon release from incarceration. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(d) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which were not paid due to the prohibition of
subdivision (b).
(e) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at the lesser of the minimum amount set forth in Section 4453 or 1.5
times the inmate's average weekly earnings from all employers.
(f) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(g) This division shall be the exclusive remedy against the
county, city, or city and county for injuries occurring while engaged
in assigned work or work under contract. This division shall not
affect any right or remedy of an injured inmate for injuries not
compensated by this division.
SECTION 1. Section 3370 of the Labor Code is
amended to read:
3370. (a) Each inmate of a state penal or correctional
institution, or of a city or county jail, shall be entitled to the
workers' compensation benefits provided by this division for injury
arising out of and in the course of assigned employment and for the
death of the inmate if the injury proximately causes death, subject
to all of the following conditions:
(1) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(2) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a state prison, or in a city
or county jail.
(3) 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. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(4) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which were not paid due to the prohibition of
paragraph (2).
(5) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at not more than the minimum amount set forth in Section 4453.
(6) Where a dispute exists respecting an inmate's rights to the
workers' compensation benefits provided herein, the inmate may file
an application with the appeals board to resolve the dispute. The
application may be filed at any time during the inmate's
incarceration.
(7) After release or discharge from a correctional institution,
including a city or county jail, the former inmate shall have one
year in which to file an original application with the appeals board,
unless the time of injury is such that it would allow more time
under Section 5804.
(8) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state
for injuries occurring while engaged in assigned work or work under
contract. Nothing in this division shall affect any right or remedy
of an injured inmate for injuries not compensated by this division.
(b) (1) The Department of Corrections and Rehabilitation shall
present to each inmate of a state penal or correctional institution,
prior to his or her first assignment to work at the institution, a
printed statement of his or her rights under this division, and a
description of procedures to be followed in filing for benefits under
this section. The statement shall be approved by the administrative
director and be posted in a conspicuous place at each place where an
inmate works.
(2) The city or county jail shall present to each inmate of a city
or county jail facility, prior to his or her first work assignment,
a printed statement of his or her rights under this section, and a
description of procedures to be followed in filing for benefits under
this section. The statement shall be approved by the administrative
director of the jail and be posted in a conspicuous place at each
facility.
(c) (1) Notwithstanding any other provision of this division, the
Department of Corrections and Rehabilitation 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, upon request, to the services of a consulting physician.
(2) Notwithstanding any other provision of this division, a city
or county jail facility's staff shall have medical control over the
treatment provided an injured inmate while incarcerated in a city or
county jail, except that in serious cases, the inmate is entitled,
upon request, to the services of a consulting physician.
(d) (1) Paragraphs (2), (3), and (4) of subdivision (a) shall also
be applicable to an inmate of a state penal or correctional
institution who would otherwise be entitled to receive workers'
compensation benefits based on an injury sustained prior to his or
her incarceration. However, temporary and permanent disability
benefits which, except for this subdivision, 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. If the inmate has no dependents, the temporary disability
benefits which, except for this subdivision, would otherwise be
payable during the inmate's incarceration shall be paid to the State
Treasury to the credit of the Uninsured Employers Fund, and the
permanent disability benefits which would otherwise be payable during
the inmate's incarceration shall be held in trust for the inmate by
the Department of Corrections and Rehabilitation during the period of
incarceration.
(2) Paragraphs (2), (3), and (4) of subdivision (a) shall also be
applicable to an inmate of a city or county jail who would otherwise
be entitled to receive workers' compensation benefits based on an
injury sustained prior to his or her incarceration. However,
temporary and permanent disability benefits which, except for this
subdivision, would otherwise be payable to an inmate of a city or
county jail during incarceration based on an injury sustained prior
to incarceration shall be paid to the dependents of the inmate. If
the inmate has no dependents, the temporary disability benefits
which, except for this subdivision, would otherwise be payable during
the inmate's incarceration, and the permanent disability benefits
which would otherwise be payable during the inmate's incarceration
shall be held in trust by the jail facility during the period of
incarceration.
(3) For purposes of this subdivision, "dependents" means the
inmate's spouse or children, including an inmate's former spouse due
to divorce and the inmate's children from that marriage.
(e) Notwithstanding any other provision of this division, an
employee who is an inmate, as defined in subdivision (e) of Section
3351 who is eligible for vocational rehabilitation services as
defined in Section 4635 shall only be eligible for direct placement
services.
SEC. 2. Section 4453 of the Labor Code is
amended to read:
4453. (a) In computing average annual earnings for the purposes
of temporary disability indemnity and permanent total disability
indemnity only, the average weekly earnings shall be taken at:
(1) Not less than one hundred twenty-six dollars ($126) nor more
than two hundred ninety-four dollars ($294), for injuries occurring
on or after January 1, 1983.
(2) Not less than one hundred sixty-eight dollars ($168) nor more
than three hundred thirty-six dollars ($336), for injuries occurring
on or after January 1, 1984.
(3) Not less than one hundred sixty-eight dollars ($168) for
permanent total disability, and, for temporary disability, not less
than the lesser of one hundred sixty-eight dollars ($168) or 1.5
times the employee's average weekly earnings from all employers, but
in no event less than one hundred forty-seven dollars ($147), nor
more than three hundred ninety-nine dollars ($399), for injuries
occurring on or after January 1, 1990.
(4) Not less than one hundred sixty-eight dollars ($168) for
permanent total disability, and for temporary disability, not less
than the lesser of one hundred eighty-nine dollars ($189) or 1.5
times the employee's average weekly earnings from all employers, nor
more than five hundred four dollars ($504), for injuries occurring on
or after January 1, 1991.
(5) Not less than one hundred sixty-eight dollars ($168) for
permanent total disability, and for temporary disability, not less
than the lesser of one hundred eighty-nine dollars ($189) or 1.5
times the employee's average weekly earnings from all employers, nor
more than six hundred nine dollars ($609), for injuries occurring on
or after July 1, 1994.
(6) Not less than one hundred sixty-eight dollars ($168) for
permanent total disability, and for temporary disability, not less
than the lesser of one hundred eighty-nine dollars ($189) or 1.5
times the employee's average weekly earnings from all employers, nor
more than six hundred seventy-two dollars ($672), for injuries
occurring on or after July 1, 1995.
(7) Not less than one hundred sixty-eight dollars ($168) for
permanent total disability, and for temporary disability, not less
than the lesser of one hundred eighty-nine dollars ($189) or 1.5
times the employee's average weekly earnings from all employers, nor
more than seven hundred thirty-five dollars ($735), for injuries
occurring on or after July 1, 1996.
(8) Not less than one hundred eighty-nine dollars ($189), nor more
than nine hundred three dollars ($903), for injuries occurring on or
after January 1, 2003.
(9) Not less than one hundred eighty-nine dollars ($189), nor more
than one thousand ninety-two dollars ($1,092), for injuries
occurring on or after January 1, 2004.
(10) Not less than one hundred eighty-nine dollars ($189), nor
more than one thousand two hundred sixty dollars ($1,260), for
injuries occurring on or after January 1, 2005. For injuries
occurring on or after January 1, 2006, average weekly earnings shall
be taken at not less than one hundred eighty-nine dollars ($189), nor
more than one thousand two hundred sixty dollars ($1,260) or 1.5
times the state average weekly wage, whichever is greater. Commencing
on January 1, 2007, and each January 1 thereafter, the limits
specified in this paragraph shall be increased by an amount equal to
the percentage increase in the state average weekly wage as compared
to the prior year. For purposes of this paragraph, "state average
weekly wage" means the average weekly wage paid by employers to
employees covered by unemployment insurance as reported by the United
States Department of Labor for California for the 12 months ending
March 31 of the calendar year preceding the year in which the injury
occurred.
(11) Not less than the lesser of one hundred eighty-nine dollars
($189) or 1.5 times the employee's average weekly earnings from all
employers, nor more than one thousand two hundred sixty dollars
($1,260), for injuries occurring on or after January 1, 2012.
(b) In computing average annual earnings for purposes of permanent
partial disability indemnity, except as provided in Section 4659,
the average weekly earnings shall be taken at:
(1) Not less than seventy-five dollars ($75), nor more than one
hundred ninety-five dollars ($195), for injuries occurring on or
after January 1, 1983.
(2) Not less than one hundred five dollars ($105), nor more than
two hundred ten dollars ($210), for injuries occurring on or after
January 1, 1984.
(3) When the final adjusted permanent disability rating of the
injured employee is 15 percent or greater, but not more than 24.75
percent: (A) not less than one hundred five dollars ($105), nor more
than two hundred twenty-two dollars ($222), for injuries occurring on
or after July 1, 1994; (B) not less than one hundred five dollars
($105), nor more than two hundred thirty-one dollars ($231), for
injuries occurring on or after July 1, 1995; (C) not less than one
hundred five dollars ($105), nor more than two hundred forty dollars
($240), for injuries occurring on or after July 1, 1996.
(4) When the final adjusted permanent disability rating of the
injured employee is 25 percent or greater, not less than one hundred
five dollars ($105), nor more than two hundred twenty-two dollars
($222), for injuries occurring on or after January 1, 1991.
(5) When the final adjusted permanent disability rating of the
injured employee is 25 percent or greater but not more than 69.75
percent: (A) not less than one hundred five dollars ($105), nor more
than two hundred thirty-seven dollars ($237), for injuries occurring
on or after July 1, 1994; (B) not less than one hundred five dollars
($105), nor more than two hundred forty-six dollars ($246), for
injuries occurring on or after July 1, 1995; and (C) not less than
one hundred five dollars ($105), nor more than two hundred fifty-five
dollars ($255), for injuries occurring on or after July 1, 1996.
(6) When the final adjusted permanent disability rating of the
injured employee is less than 70 percent: (A) not less than one
hundred fifty dollars ($150), nor more than two hundred seventy-seven
dollars and fifty cents ($277.50), for injuries occurring on or
after January 1, 2003; (B) not less than one hundred fifty-seven
dollars and fifty cents ($157.50), nor more than three hundred
dollars ($300), for injuries occurring on or after January 1, 2004;
(C) not less than one hundred fifty-seven dollars and fifty cents
($157.50), nor more than three hundred thirty dollars ($330), for
injuries occurring on or after January 1, 2005; and (D) not less than
one hundred ninety-five dollars ($195), nor more than three hundred
forty-five dollars ($345), for injuries occurring on or after January
1, 2006.
(7) When the final adjusted permanent disability rating of the
injured employee is 70 percent or greater, but less than 100 percent:
(A) not less than one hundred five dollars ($105), nor more than two
hundred fifty-two dollars ($252), for injuries occurring on or after
July 1, 1994; (B) not less than one hundred five dollars ($105), nor
more than two hundred ninety-seven dollars ($297), for injuries
occurring on or after July 1, 1995; (C) not less than one hundred
five dollars ($105), nor more than three hundred forty-five dollars
($345), for injuries occurring on or after July 1, 1996; (D) not less
than one hundred fifty dollars ($150), nor more than three hundred
forty-five dollars ($345), for injuries occurring on or after January
1, 2003; (E) not less than one hundred fifty-seven dollars and fifty
cents ($157.50), nor more than three hundred seventy-five dollars
($375), for injuries occurring on or after January 1, 2004; (F) not
less than one hundred fifty-seven dollars and fifty cents ($157.50),
nor more than four hundred five dollars ($405), for injuries
occurring on or after January 1, 2005; and (G) not less than one
hundred ninety-five dollars ($195), nor more than four hundred five
dollars ($405), for injuries occurring on or after January 1, 2006.
(c) Between the limits specified in subdivisions (a) and (b), the
average weekly earnings, except as provided in Sections 4456 to 4459,
shall be arrived at as follows:
(1) Where the employment is for 30 or more hours a week and for
five or more working days a week, the average weekly earnings shall
be the number of working days a week times the daily earnings at the
time of the injury.
(2) Where the employee is working for two or more employers at or
about the time of the injury, the average weekly earnings shall be
taken as the aggregate of these earnings from all employments
computed in terms of one week; but the earnings from employments
other than the employment in which the injury occurred shall not be
taken at a higher rate than the hourly rate paid at the time of the
injury.
(3) If the earnings are at an irregular rate, such as piecework,
or on a commission basis, or are specified to be by week, month, or
other period, then the average weekly earnings mentioned in
subdivision (a) shall be taken as the actual weekly earnings averaged
for this period of time, not exceeding one year, as may conveniently
be taken to determine an average weekly rate of pay.
(4) Where the employment is for less than 30 hours per week, or
where for any reason the foregoing methods of arriving at the average
weekly earnings cannot reasonably and fairly be applied, the average
weekly earnings shall be taken at 100 percent of the sum which
reasonably represents the average weekly earning capacity of the
injured employee at the time of his or her injury, due consideration
being given to his or her actual earnings from all sources and
employments.
(d) Every computation made pursuant to this section beginning
January 1, 1990, shall be made only with reference to temporary
disability or the permanent disability resulting from an original
injury sustained after January 1, 1990. However, all rights existing
under this section on January 1, 1990, shall be continued in force.
Except as provided in Section 4661.5, disability indemnity benefits
shall be calculated according to the limits in this section in effect
on the date of injury and shall remain in effect for the duration of
any disability resulting from the injury.
SEC. 3. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
