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

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            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

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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 
          Hearing Date:  June 27, 2012                             AB 2451  
          Consultant: Gideon L. Baum                               Page 6

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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  
          Consultant: Gideon L. Baum                               Page 7

          Senate Committee on Labor and Industrial Relations