BILL ANALYSIS
AB 128
Page 1
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON INSURANCE
Joe Coto, Chair
AB 128 (Coto) - As Introduced: January 16, 2009
SUBJECT : Workers' compensation: cancer presumption
SUMMARY : Extends the statute of limitations on the existing
cancer presumption for safety employees to a period of time
equal to one year for each year of service. Specifically, this
bill :
1)Extends, from three months per year of service to one year per
year of service, the period of time after termination of
service during which cancer is presumed to be work-related.
2)Repeals the cap of five years that limited the duration of the
three month rule in cases involving long-serving safety
employees.
3)Specifies that the provision of law establishing the cancer
presumption may be cited as the William Dallas Jones Cancer
Presumption Act of 2009.
EXISTING LAW
1)Provides for a comprehensive system of workers' compensation
benefits for injuries that occur during the course of
employment.
2)Provides that for specified safety employees (firefighters and
peace officers) cancer is presumed to have arisen during the
course of employment.
3)Requires the Workers' Compensation Appeals Board (WCAB) to
find that the cancer is employment-related unless the employer
proves that the cancer is not related to employment.
4)Specifies that for the presumption to apply, the safety
officer must be in service at the time the cancer manifests
itself, or, if the employee has separated from the employer,
the statute of limitations has not expired. The statute of
limitations is different for each employee, based on a formula
that grants three months for each year of service to that
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employer, with the period commencing on the last date actually
worked.
5)Provides that, regardless of the time period for the statute
of limitations calculated using the three months per year of
service formula, in no case shall the statute of limitations
be more than 5 years from the date last worked by the employee
for that employer.
FISCAL EFFECT : Undetermined but potentially significant costs
to the State due to increased workers' compensation payments to
state firefighters and peace officers.
COMMENTS :
1)Purpose . According to the author, in the course of performing
their job-related duties, firefighters and other public safety
personnel routinely come into contact with materials known to
cause various types of cancer. Since the original cancer
presumption statute was enacted over two decades ago, research
and anecdotal information reveal that some industrially-caused
cancers actually manifest themselves well-beyond the existing
60 month statute of limitations given the complex synergistic
effects of multiple compound exposures, as well as the rapidly
growing introduction of new chemicals and industrial compounds
into our environment. Consequently, there is a critical need
to strike the cap in current law.
2)Rationale for presumption . Many factors play a role in the
development of cancer, while the importance of these factors
is different for different types of cancer. A person's risk
of developing a particular cancer is influenced by a
combination of factors, some of which include one's exposure
to cancer-causing agents in their environment, as well as
their exposure to cancer-causing agents in the workplace. In
many cases, these factors act together or in sequence to cause
cancer.
According to the US Department of Health and Human Services, the
time from genetic cellular change to the development of cancer
is called the latency period. A latency period can be 10 years
or as long as 30 years or more, which means that some cancers
diagnosed today may be due to genetic changes that occurred in
the cells some time ago.
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Further, in November 2006, the Journal of Occupational and
Environmental Medicine found that firefighters have
significantly elevated rates of four types of cancer: multiple
myeloma, non-Hodgkin's lymphoma, prostate, and testicular
cancer.
According to the sponsors of the bill, the California
Professional Firefighters, the original purpose of the
presumption, which was enacted over 20 years ago, was to
recognize that it was probable that many cancers that
afflicted safety officers were job-related, but due to the
passage of time during the latency period, it was difficult to
prove that relation to the job.
Recent scientific developments, however, have shown that the
original statute of limitations provision is contrary to the
purposes of the presumption. Several of the cancers most
closely associated with the firefighters and their profession
have a latency period longer than 60 months. For example, a
review of The Risk of Cancer in Firefighters by Anne L Golden,
PhD, Steven B Markowitz, PhD, and Philip J Landrigan, MD, MSc,
as published in 1995 in the Occupational Medicine: State of
the Art Reviews, reveals that the latency period for most of
the relevant cancers associated with exposure to chemical
carcinogens is likely to be at least three or four decades.
3)William Dallas Jones . William "Dallas" Jones was a dedicated
firefighter in Los Angeles County for nearly 35 years. The
passion and professionalism with which he conducted his duties
as President for Los Angeles County Firefighters Local 1014
and later as Secretary/Treasurer for California Professional
Firefighters made him highly qualified to lead the state
Office of Emergency Services as Director from 1999-2004.
During his time at OES, Dallas responded to and was on the
ground during a myriad of emergencies, including the
devastating fire storms in 2003 that engulfed Southern
California. After leaving that post, he continued his work by
returning as Secretary-Treasurer for the California
Professional Firefighters, even after he was diagnosed with
cancer in 2007. He ultimately succumbed to cancer when it
claimed his life in 2008.
4)Opposition . A number of public entities and associations of
public entities are opposed to the bill. (See full listing
below.) They cite a 2004 WCAB ruling that held that the
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public employer must, in order to rebut the cancer
presumption, "explicitly demonstrate that medical or
scientific research has shown that there is no reasonable
inference that exposure to known carcinogen or carcinogens is
related to [the cancer] or causes the development of the
cancer." They conclude that this standard makes it virtually
impossible to rebut the presumption, and that therefore the
bill makes any cancer any safety officer ever contracts
compensable through the workers' compensation system.
Opponents note that the cancer presumption applies to any
cancer, and that the risk of cancer in the general population
greatly increases with age. They provide an example of a
25-year-old person who works for 25 years, then retires - a
not uncommon scenario in fire and police work. This person
would have the benefit of the cancer presumption until the age
of 75, when the general risk of cancer is substantially
increased.
5)Costs Associated with workers' compensation cancer presumption
claims :
a) Medical expenses . While many retired safety officers
have employer-provided health insurance, there are still
medical expenses associated with turning the cancer into a
workers' compensation case. Usually, PERS or other pension
fund-related health program treats workers' compensation as
primary, so even though the public employer is paying
premiums to the plan, the medical expenses must be paid
directly. For those not in public medical plans, the
public employer would become primary.
b) Death benefits . Death benefits of up to $290,000,
depending on the number of dependents a cancer victim has,
are payable by the public employer, plus weekly payments of
over $950 per week for the support of minor dependents
until they reach the age of 18.
c) Temporary and permanent disability payments. For those
safety officers still in the labor market, the normal range
of temporary and permanent disability benefits, including
"4850" time (providing full salary replacement for one
year, an enhancement over regular temporary disability
benefits), would be provided.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Highway Patrolmen (sponsor)
California Nurses Association
California Professional Firefighters (sponsor)
California State Employees Association (CSEA)
Kern County Firefighters Union, Inc.
Marin Professional Firefighters
Monrovia Firefighters - Local 2415
Orange County Professional Firefighters' Association
Peace Officers Research Association of California (PORAC)
Union City Firefighters - Local 1946
Opposition
California Association of Joint Powers Authorities
California Coalition on Workers' Compensation
California Special Districts Association
California State Association of Counties
CSAC Excess Insurance Authority
Los Angeles County
Orange County Board of Supervisors
Regional Council of Rural Counties
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086