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
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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.
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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
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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
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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
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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
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Senate Committee on Labor and Industrial Relations