BILL ANALYSIS Ó
AB 2451
Page 1
ASSEMBLY THIRD READING
AB 2451 (John A. Pérez)
As Amended April 19, 2012
Majority vote
INSURANCE 11-0
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|Ayes:|Bradford, Charles | | |
| |Calderon, Carter, Feuer, | | |
| |Beth Gaines, Hayashi, | | |
| |Miller, Olsen, Skinner, | | |
| |Torres, Wieckowski | | |
| | | | |
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SUMMARY : Extends the statute of limitations on filing a workers'
compensation claim for death benefits to one year after the date of
death when death resulted from a cause for which compensability is
presumed. Specifically, this bill :
1)Provides that the period within which proceedings to claim the
workers' compensation death benefit payable to a dependent or
dependents of a firefighter or peace officer, when death is due to
a condition for which compensability is presumed, is one year from
the date of death.
2)Specifies the conditions that allow compensability to be presumed
that are subject to this new statute of limitations to be:
a) Hernia, pneumonia or heart trouble;
b) Cancer, including leukemia;
c) Tuberculosis; or,
d) Blood-borne infectious diseases and methicillin-resistant
Staphylococcus aureus skin infection (MRSA).
EXISTING LAW :
1)Establishes a comprehensive system for providing benefits to
workers injured on the job, including death benefits payable to
dependents.
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2)Provides generally that an injured worker bears the burden to
establish that the injury for which benefits are claimed arose out
of or in the course of employment.
3)Provides, for specified peace officer and firefighter employees,
that certain injuries or conditions are presumed to have arisen
out of or in the course of employment.
4)Specifies in great detail which firefighters and peace officers
are entitled to the various presumptions.
5)Provides for a statute of limitations defining the period within
which a claim for benefits must be filed, and with respect to
death benefits, specifies that the claim must be filed within one
year of:
a) The date of death, if death occurs less than one year from
the date of injury;
b) The date of last furnishing benefits, if death occurs more
than one year from the date of injury; or,
c) The date of death, if death occurs more than one year after
the date of injury and compensation benefits have been
furnished.
6)Establishes special rules governing the period within which
proceedings must be commenced for asbestosis and HIV/AIDS cases.
7)Provides further that, notwithstanding the above limitations, no
proceedings may be commenced later than one year after the date of
death or 240 weeks after the date of injury.
8)Establishes a schedule of death benefits, with specific amounts
due depending on whether the dependent is fully or partially
dependent, and depending on the number of fully or partially
dependent beneficiaries. Depending on the circumstances, the
death benefits can be in excess of $300,000.
9)Provides that when a person otherwise entitled to death benefits
has no dependents, the benefits shall be paid to the state, and
credited to the uninsured employers fund, which pays for benefits
to injured workers who were employed by an illegally uninsured
employer.
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10)Specifies that questions about full or partial dependency, and
questions about who the dependents are, shall be determined "in
accordance with the facts as they exist at the time of the injury
of the employee." (Emphasis added.)
11)Provides that no person is a dependent unless:
a) He or she is, in good faith, a member of the family or
household of the employee; or,
b) 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 sister-in-law, or nephew or
niece of the employee.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
Purpose . According to the author, this bill is necessary because
surviving family members of fallen firefighters and peace officers
who are "timed out" of the right to receive death benefits should be
entitled to the same rules attributable to asbestos-related cancer
or HIV-related diseases.
More specifically, proponents point to cases where the safety
officer is suffering from long-term heart problems, or a long battle
with cancer, or cases where the cancer is temporarily in remission.
In these cases, the employer is well aware of the existence of the
claim, has had the opportunity to reserve for the claim, but the
fact that the injured safety officer is able to battle the condition
long enough to get past the existing limitations period, the
employer is relieved from paying a death benefit to dependents once
the officer finally succumbs to the illness.
Which safety officers does the bill apply to ? The bill applies to
"a firefighter or peace officer" who dies from an injury "defined
in" the Labor Code sections that establish the various presumptions
of compensability. The bill's language does not appear to restrict
this new extended statute of limitations to those safety officers
that are specifically afforded the right to the presumption by those
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statutes. Rather, any former employee who can fit into the broad
category of firefighter or peace officer, even if not covered by the
presumption statute in the first place, but whose "injury" is
"defined in" those statutes, could arguably be entitled to this new
extended statute of limitations.
The author has committed to work with opponents to clarify which
safety officers would be entitled to the bill's provisions.
Which dependents ? Existing law defining dependents is broad,
encompassing an extended range of formal family members, but also
including members of the employee's household who in fact have a
dependent relationship to the employee even if not one of the
specifically recognized familial relations. But as to all of these
potential dependents, the law provides that the determination of
dependent status is a factual question determined by the facts that
exist "at the time of the injury of the employee."
In the typical case, this is not a complicated matter, even with
respect to some of the presumptions where death does not occur
relatively contemporaneously with the injury. However, with the
extended statute of limitations proposed by the bill, many years,
indeed, many decades could transpire from an initial suggestion of
cancer or heart disease, and the ultimate death related to these
conditions. As a result, the dependents defined by existing law may
be factually no longer dependent on the employee. Similarly, as a
result of the death or divorce of a spouse, or other substantial
familial changes, new factual dependents could find themselves
without the right to the death benefits provided by the bill. At
the same time, recipients no longer dependent on the employee, but
who were dependent "at the time of the injury," could claim the
death benefits instead of the current factual dependents.
The author has committed to evaluate the extent to which special
rules governing eligible dependents may be appropriate as the time
to claim the benefits is extended further into the future.
Payments to the state . Existing law provides that, in the event
there is a compensable death, but there is no dependent, the death
benefit is payable to the state, to be deposited into the uninsured
employer benefit fund. This is the fund that pays workers'
compensation benefits to employees working for an employer that was
illegally uninsured at the time of injury, where the employer is now
out of business or otherwise not reachable to pay the obligations.
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The way the bill is currently structured, it appears that even where
there is no dependent, the public agency would still be required to
make this payment to the state, even though the death occurs many
years into the future.
There is no doubt that this is an important state function. The
author has agreed to consider if this obligation should also be
included in the extended statute of limitations provided by the
bill.
Purpose of presumptions . The general rationale for presuming
certain injuries or conditions to be job related is that the
conditions are intuitively likely to be job related, but it is
difficult for the employee to prove. As a result, certain public
safety employees have been granted this special rule in recognition
of the inherent dangers they face on the job. Opponents, a
coalition of local government employers, point out that the bill has
no limit on how far into the future the limitations period is
extended. Thus, any retired safety officer who dies in his or her
80's or 90's of a cancer or heart related condition would be
presumed to have a work-related cause, and his or her dependents
would be entitled to a death benefit. But with the incidence of
cancer and heart conditions as the cause of death for many elderly
people, the causation for someone 20, 30, or more years removed from
service is much more debatable. The opposition argues that the cost
of these doubtful work-related death benefits would exceed $60
million annually just for counties, without reference to other local
governments' or the state's costs.
HIV and asbestosis . Opponents argue that there are valid policy
reasons for the extended limitations periods for HIV-related and
asbestosis conditions. Even far into the future, the likelihood of
a job-related connection remains strong, thus justifying the
extended limitations period. In contrast, in light of the number of
people who die of cancer or heart conditions in all age groups, the
opponents do not believe the analogy holds.
Past related legislation . In 2004, AB 3051 (Nation and Vargas)
proposed a similar rule to what is being proposed by this bill. AB
3051, however, applied only to firefighters, and was drafted more
narrowly because it would have required that the death result from
an injury that manifested itself in the original limitations period
provided for the various presumptive injuries. As noted above, this
bill extends the limitations period without limit into the future.
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Nonetheless, AB 3051 was vetoed. The veto message sent by Governor
Schwarzenegger provided, in pertinent part:
"This bill extends the statute of limitations for the collection of
death benefits that are presumptively concluded to be service
related. Because current law presumes certain firefighter injuries
to be work-related, this bill will also increase the potential for
the surviving heirs of firefighters who die from non-work related
illnesses to receive workers compensation death benefits."
The author has agreed to address this issue, possibly with a
requirement that there actually was a timely workers' compensation
claim filed related to the ultimate cause of death, for the extended
limitations period proposed by the bill to apply.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086
FN: 0003472