BILL ANALYSIS Ó Senate Committee on Labor and Industrial Relations Ted W. Lieu, Chair Date of Hearing: June 27, 2012 2011-2012 Regular Session Consultant: Gideon L. Baum Fiscal:No Urgency: No Bill No: AB 2451 Author: John A. Pérez As Introduced/Amended: April 19, 2012 SUBJECT Workers' compensation: firefighters. KEY ISSUE Should the Legislature exempt the dependents of firefighters and peace officers from the timelines that limit the filing for workers' compensation death benefits if the deceased worker died of heart disease, hernias, Pneumonia, Cancer, Tuberculosis, MRSA skin infections, or a bloodborne infectious disease? PURPOSE To allow dependents of a firefighter or peace officer who dies of certain occupational ailments to file for workers' compensation death benefits from one year of the date of death, irrespective of the date of injury. 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 creates a series of disputable presumptions of an occupational injury for peace and safety officers for the purposes of the workers' compensation system. These presumptions include: Heart disease; Hernias; Pneumonia; Cancer; Meningitis; Tuberculosis; Methicillin-Resistant Staphylococcus aureus (MRSA) skin infections; and Bloodborne infectious disease. The compensation awarded for these injuries must include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by workers compensation law. These presumptions tend to run for 5 to 10 years commencing on their last day of employment, depending on the injury and the peace officer classification involved. (Labor Code §§3212 to 3213.2) Existing law provides that the presumptions listed above are disputable and may be controverted by evidence. However, unless controverted, the Workers' Compensation Appeals Board must find is accordance with the presumption. (Labor Code §§3212 to 3213.2) Existing law provides for the payment of a workers' compensation indemnity death benefit. The amount of the benefit is determined by the date of injury, the number dependents, and if those dependents are partially dependent or wholly dependent on the deceased worker. (Labor Code §§ 4700 to 4709) Existing law provides that no person is a dependent of any deceased employee unless in good faith a member of the family or household of the employee, or unless the person bears to the employee the relation of husband or wife, child, posthumous child, adopted child or stepchild, grandchild, father or mother, father-in-law or mother-in-law, grandfather or grandmother, brother or sister, uncle or aunt, brother-in-law or Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. Baum Page 2 Senate Committee on Labor and Industrial Relations sister-in-law, nephew or niece. (Labor Code §3503) Existing law requires, with certain exceptions , that the collection of workers' compensation death benefits must be commenced one year from: 1) The date of death where death occurs within one year from date of injury; or 2) The date of last furnishing of any benefits where death occurs more than one year from the date of injury; or 3) The date of death, where death occurs more than one year after the date of injury and compensation benefits have been furnished. No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury. (Labor Code §5405) The exceptions to the above timelines are as follows: a) In the case of the death of an asbestos worker or firefighter from asbestosis, the period within which proceedings may be commenced for the collection of workers' compensation death benefits is one year from the date of death; b) In the case of the death of a healthcare worker, firefighter, peace officer, or correctional officer from HIV-related disease, the period within which proceedings may be commenced for the collection of workers' compensation death benefits is one year from the date of death, provided they meet certain requirements. (Labor Code §§ 5406.5 and 5406.6) Existing law defines the "date of injury", as that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed. Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. Baum Page 3 Senate Committee on Labor and Industrial Relations (Labor Code §5411) This bill would provide that, in the case of the death of a firefighter or peace officer due certain occupational injuries, the period within which proceedings may be commenced for the collection of workers' compensation death benefits is one year from the date of death. Those injuries are: Heart disease; Hernias; Pneumonia; Cancer; Tuberculosis; Methicillin-Resistant Staphylococcus aureus (MRSA) skin infections; and Bloodborne infectious disease. COMMENTS 1. A Brief Discussion on Presumptions and Death Benefits: Presumptions for peace officers and firefighters have been a part of workers' compensation law since 1917. While their scope has grown, the fundamental idea behind each and every presumption remains the same: these are injuries that are intuitively likely to be job related, and therefore occupational injuries compensable in the workers' compensation system, but are difficult for the employee to prove. A good example of this is the "heart trouble" presumption, which was created in 1939: while many individuals suffer from heart ailments for a variety of different reasons, the jobs we asked firefighters and peace officers to fulfill are very stressful and take a toll on their heart. Therefore, for these individuals, the Legislative granted a presumption that a firefighter or peace officer's "heart trouble" is occupational. Even with these presumptions in place, however, limits on the ability of any individual to collect workers' compensation death benefits, which can generally be defined as one year Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. Baum Page 4 Senate Committee on Labor and Industrial Relations from the date of death if the injury was within 240 weeks of the initial injury, or about 4 years, were in place for all workers until 1980. Even when exceptions to the workers' compensation death benefit timelines were approved by the Legislative in 1999 and 2003, they were quite limited: it was for asbestos workers who died from asbestosis, which is a lung ailment that can only come from long-term exposure to asbestos, is universally recognized as an occupational cancer, and can take 30 years to manifest itself. Two other changes have been made to death benefit timelines since then. In 1999, it was for healthcare worker, firefighter, peace officer, or correctional officer from HIV-related disease, but only when the injury was recognize to be occupational prior to the injured worker's death . Then, in 2003, firefighters were added to the asbestosis exception due to the significant and long-term occupational exposure to asbestos due to its prominence as a building material. Since then, the timelines have remained unchanged. 2. AB 2451 and Workers' Compensation Death Benefits: As was discussed above, AB 2451 would create significant exceptions from the existing restriction on workers' compensation death benefits. The operation of AB 2451 will vary greatly from individual to individual, depending on the circumstance of the occupational injury suffered by a firefighter or peace officer. For example, if a firefighter discovered that she or he had cancer 3 years after retiring, that firefighter would be covered by existing workers' compensation presumptions. However, if that firefighter were unfortunately to succumb to cancer, but did so after a fight that lasted 5 years, the firefighter's estate would be unable to claim a death benefit. AB 2451 would instead say that the firefighter's estate could claim a death benefit up to 1 year after the death of the firefighter. However, AB 2451 does not place any limits on the operation of this exception to the workers' compensation death benefit timelines. For example, if a firefighter that had retired for Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. Baum Page 5 Senate Committee on Labor and Industrial Relations 20 years were to suddenly suffer a heart attack and die, his or her family would be able to file for workers' compensation death benefits under AB 2451. Unlike current law, this exception would operate without either a previous workers' compensation claim or a strong circumstantial evidentiary claim to the death being tied to an occupational injury, as is present in asbestosis. 3. Proponent Arguments : Proponents argue that existing law is not meeting the needs of California's firefighters and peace officers. Proponents note that if a firefighter or peace officer dies of an occupational disease more than five years after being diagnosed with the disease, his or her family members are unable to claim a death benefit. With occupational injuries such as cancer, the timeframe between when the injury was discovered and when the worker succumbs to the injury may be longer than 5 years. In these cases, proponents argue that the families of firefighters and peace officers should not be denied their right to workers' compensation death benefits due to their families. 4. Opponent Arguments : Opponents argue that AB 2451 will dramatically increase costs on local governments and counties at a time when budgets are limited and workers' compensation costs are rising. Opponents argue that AB 2451 does not act like existing presumptions or exceptions to the statute of limitations on workers' compensation death benefits, as there are no limits on when such claims could be filed. Opponents also note that this could have significant impacts, as it will impact all firefighters and peace officers currently employed, but also all currently living retirees that are peace officers or firefighters. Due to this, the County of Los Angeles alone places the cost of complying with AB 2451 at $20 million annually. 5. Prior Legislation : AB 3051 (Nation and Vargas) would have exempted the dependents Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. Baum Page 6 Senate Committee on Labor and Industrial Relations of firefighters from the filing timelines for workers' compensation benefits, but only if the death resulted from a presumptive injury that manifested itself within 5 years. That bill was vetoed by Governor Schwarzenegger. SUPPORT California Professional Firefighters (Sponsor) California Association of Highway Patrolmen (Co-sponsor) American Federation of State, County and Municipal Employees, AFL-CIO Association for Los Angeles Deputy Sheriffs Association of Orange County Deputy Sheriffs Association California Correctional Peace Officers Association California Fraternal Order of Police California Labor Federation AFL-CIO California Statewide Law Enforcement Association Long Beach Police Officers Association Los Angeles County Probation Officers Union Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Peace Officers Research Association of California Riverside Sheriffs Association Sacramento County Deputy Sheriffs Association Santa Ana Police Officers Association Voters Injured at Work OPPOSITION California Association of Joint Powers Authorities California Coalition on Workers' Compensation County of Los Angeles Hearing Date: June 27, 2012 AB 2451 Consultant: Gideon L. 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