Amended in Senate August 13, 2013

Amended in Assembly April 25, 2013

Amended in Assembly April 10, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1309

Introduced by Assembly Member Perea

(Principal coauthor: Senator Lieu)

(Coauthors: Assembly Members Buchanan, Conway, Hagman, and Hall)

(Coauthors: Senators Correa, Hill, Huff, Lara, and Wyland)

February 22, 2013

An act to amend Sections 3600.5 and begin delete 5412 end delete begin insert 5500.6 end insert of the Labor Code, relating to workers’ compensation.

LEGISLATIVE COUNSEL’S DIGEST

AB 1309, as amended, Perea. Workers’ compensation: professional athletes.

Existing workers’ compensation law requires employers to secure the payment of workers’ compensation, including medical treatment, for injuries incurred by their employees that arise out of, or in the course of, employment.

Existing law provides that an injury may be either “specific,” occurring as the result of one incident or exposure that causes disability or need for medical treatment, or “cumulative,” occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. begin delete Existing law provides that the date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that the disability was caused by his or her present or prior employment. end delete

Existing law provides that an employee who has been hired outside of this state and his or her employer are exempt from these provisions while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of a state other than California, as specified.

This bill would begin delete provide that end delete begin insert exempt end insert an employee hired outside of this state, his or her dependents, and his or her employer begin delete shall be exempt end delete from begin insert the occupational disease and cumulative injury provisions of end insert this state’s workers’ compensation laws if begin insert (1) end insert the employee is a professional athlete, defined, for purposes of these provisions, to include an athlete who is employed at the minor or major league level in the sport of baseball, basketball, football, hockey, or soccer, begin delete and end delete begin insert (2) end insert that professional athlete is temporarily within this state doing work for his or her employer begin insert , and (3) the employer has furnished workers’ compensation insurance under the laws of the state other than California that covers the professional athlete’s employment while in this state, except as specified end insert . This bill would deem a professional athlete to be temporarily within the state doing work for his or her employer if, during the 365 begin insert consecutive end insert days immediately preceding the professional athlete’s last day of work begin insert for the employer end insert within the state, the professional athlete performs less than begin delete 90 total end delete begin insert 20% of his or her duty end insert days begin delete of required services within the state under the direction and control of the employer end delete begin insert , as defined, in the state. The exemption would not apply to an employer of a professional athlete if the professional athlete has, over the course of his or her career, been employed for 2 seasons or longer by a California team or teams or performed 20% or more of his or her duty days in California. The bill would make an employer liable for occupational disease or cumulative injury to a professional athlete only if the employer employed the professional athlete within the last 7 nonconsecutive years of the professional athlete’s occupational exposure to the hazards of the occupational disease or cumulative injury. The bill would also state that it is the intent of the Legislature that the decision of the Workers’ Compensation Appeals Board in Wesley Carroll v. Cincinnati Bengals, et al. (2013) 78 Cal.Comp.Cases ____ (ADJ2295331) (WCAB En Banc) be limited to professional athletes, and would include other specified statements of legislative intent end insert . begin delete The bill would provide that if the employee is a professional athlete, the date of injury in cases of occupational diseases or cumulative injuries is the date of the employee’s last injurious exposure while employed anywhere as a professional athlete, or the date of diagnosis, as defined, by a licensed physician, whichever occurs later. end delete

begin delete

The bill would also provide that an employer of a professional athlete that is subject to California’s workers’ compensation laws is not liable for occupational disease or cumulative injury if at the time application for benefits is made the professional athlete performed his or her last year of work in an occupation that exposed him or her to the occupational disease or cumulative injury as an employee of one or more other employers that are exempt from California’s workers’ compensation laws pursuant to the above provisions or any other law. The bill would provide that this exception would apply to all occupational disease and cumulative injury claims filed against that employer of professional athletes, unless the professional athlete was employed for 8 or more consecutive years by the same California-based employer pursuant to a contract of hire entered into in California, and 80% or more of the professional athlete’s employment as a professional athlete occurred while employed by that California-based employer against whom the claim is filed. The

end delete

begin insert The end insert bill would provide that these changes apply to all pending claims for begin delete benefits, as specified end delete begin insert benefits filed on or after January 1, 2014, as specified end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3600.5 of the Labor Code is amended to
read:

3600.5.  

(a) If an employee who has been hired or is regularly
employed in the state receives personal injury by accident arising
out of and in the course of employment outside of this state, he or
she, or his or her dependents, in the case of his or her death, shall
be entitled to compensation according to the law of this state.

(b) (1) Except as provided in subdivision (c), an employee who
has been hired outside of this state and his or her employer shall
be exempted from the provisions of this division while the
employee is temporarily within this state doing work for his or her
employer if the employer has furnished workers’ compensation
insurance coverage under the workers’ compensation insurance
or similar laws of a state other than California, so as to cover the
employee’s employment while in this state if both of the following
apply:

(A) The extraterritorial provisions of this division are recognized
in the other state.

(B) The employers and employees who are covered in this state
are likewise exempted from the application of the workers’
compensation insurance or similar laws of the other state.

(2) In any case in which paragraph (1) is applicable, the benefits
under the workers’ compensation insurance or similar laws of the
other state, and other remedies under those laws, shall be the
exclusive remedy against the employer for any injury, whether
resulting in death or not, received by the employee while working
for the employer in this state.

(c) (1)  begin delete Any end delete begin insert With respect to an occupational disease or
cumulative injury, a end insert professional athlete who has been hired outside
of this state and his or her dependents and his or her employer
shall be exempted from the provisions of this division while the
professional athlete is temporarily within this state doing work for
his or her employer if both of the following apply:

(A) The employer has furnished workers’ compensation
insurance coverage or its equivalent under the laws of a state other
than California.

(B) The employer’s workers’ compensation insurance or its
equivalent covers the professional athlete’s employment while in
this state.

(2) If the conditions described in paragraph (1) are satisfied,
begin delete then end delete the benefits under the laws of the other state, and other
remedies under those laws, begin delete shall be end delete begin insert are end insert the exclusive remedy
against the employer for any begin insert occupational disease or cumulative end insert
injury, whether resulting in death or not, received by the employee
while working for the employer in this state begin insert , except as described
in subdivision (d) end insert .

begin delete

(3) A professional athlete shall be deemed, for purposes of this
subdivision, to be temporarily within this state doing work for his
or her employer if, during the 365 days immediately preceding the
professional athlete’s last day of work within the state, the
professional athlete performs less than 90 total days of required
services within the state under the direction and control of the
employer.

(4) (A) An employer of a professional athlete that is subject to
this division is not liable for occupational disease or cumulative
injury pursuant to Section 5500.5 if at the time application for
benefits is made the professional athlete performed his or her last
year of work in an occupation that exposed him or her to the
occupational disease or cumulative injury as an employee of one
or more other employers that are exempt from this division
pursuant to paragraph (1) or any other law.

(B) This paragraph shall apply to all occupational disease and
cumulative injury claims filed against an employer of professional
athletes if the employer is subject to this division, unless the
professional athlete was employed for eight or more consecutive
years by the same California-based employer pursuant to a contract
of hire entered into in California, and 80 percent or more of the
professional athlete’s employment as a professional athlete
occurred while employed by that California-based employer against
whom the claim is filed. For purposes of the paragraph, both of
the following apply:

(i) A California-based employer is one with a principal place
of business in this state that also plays the majority of its home
games in California.

(ii) Whether 80 percent or more of a professional athlete’s
employment as a professional athlete occurred while employed by
the same California-based employer shall be determined solely by
taking the total number of days the professional athlete was
employed by a California-based employer pursuant to a contract
of hire entered into in California and dividing that number by the
total number of days the professional athlete was employed as a
professional athlete.

end delete begin insert

(3) For purposes of this subdivision, a professional athlete is
temporarily within this state doing work for his or her employer
if, during the 365 consecutive days immediately preceding the
professional athlete’s last day of work for the employer within the
state, the professional athlete performs less than 20 percent of his
or her duty days in the State of California. For the purposes of
this section, a “duty day” means a day in which any services are
performed by an employee under the direction and control of his
or her employer pursuant to a player contract.

end insert begin delete

(5)

end delete

begin insert (4) end insert  The term “professional athlete” for purposes of this
subdivision begin insert and subdivision (d) end insert means an athlete who is employed
at either a minor or major league level in the sport of baseball,
basketball, football, hockey, or soccer.

begin delete

(6) The amendments made to this section by the act adding this
paragraph apply to all pending claims for benefits pursuant to this
division that have not yet been adjudicated.

end delete begin insert

(d) (1) Subdivision (c) does not apply to any employer of a
professional athlete if either of the following is applicable:

end insert begin insert

(A) The professional athlete has, over the course of his or her
professional career, been employed for two or more seasons by a
California team or teams.

end insert begin insert

(B) The professional athlete has, over the course of his or her
career, performed 20 percent or more of his or her duty days in
California. The percentage of a career performing duty days in
California shall be determined solely by taking the number of duty
days the professional athlete was employed by a California team
or teams, plus the number of duty days the professional athlete
was employed as a professional athlete in California by a
non-California team or teams, and dividing that number by the
total number of duty days the professional athlete was employed
anywhere as a professional athlete.

end insert begin insert

(2) For the purposes of this subdivision, a California team is
one that plays a majority of its home games in California.

end insert begin insert

(3) For purposes of this subdivision, a season is defined as the
total number of days from the date of the first preseason game by
the team for whom the professional athlete played through the
date of the last game the professional team played during his or
her contract year.

end insert begin insert

(4) If either of the conditions specified in paragraph (1) is
applicable, the benefits under the laws of California shall be the
exclusive remedy against the employer subject to this division
pursuant to Section 5500.5 for any occupational disease or
cumulative injury claim brought under the laws of the State of
California against the employer, whether resulting in death or not,
received by the employee while working for the employer in this
state.

end insert begin insert

(5) An employer that would be exempted from the provisions of
this division by subdivision (c), but for this subdivision, is exempt
from Article 4 (commencing with Section 3550) of Chapter 2 of
this division.

end insert begin insert

(6) The amendments made to this section by the act adding this
paragraph apply to all claims for benefits pursuant to this division
filed on or after January 1, 2014, but do not apply to a case in
which a final adjudication has been rendered prior to that date.
The amendments made to this section by the act adding this
paragraph shall not constitute good cause to reopen any final
decision, order, or award.

end insert begin delete

(d)

end delete

begin insert ( end insert begin insert e) end insert  For purposes of this section, a certificate from the duly
authorized officer of the appeals board or similar department of
another state certifying that the employer of the other state is
insured in that state and has provided extraterritorial coverage
insuring his or her employees while working within this state shall
be prima facie evidence that the employer carries workers’
compensation insurance.

begin delete

SEC. 2.  

Section 5412 of the Labor Code is amended to read:

5412.  

(a) The date of injury in cases of occupational diseases
or cumulative injuries is that date upon which the employee first
suffered disability therefrom and either knew, or in the exercise
of reasonable diligence should have known, that the disability was
caused by his or her present or prior employment.

(b) In the event the employee is a professional athlete:

(1) The date of injury in cases of occupational disease or
cumulative injuries is the date of the employee’s last injurious
exposure while employed anywhere as a professional athlete, or
the date of diagnosis by a licensed physician, whichever occurs
later.

(2) The date of diagnosis by a licensed physician is that date on
which the licensed physician informed the professional athlete of
his or her medical diagnosis.

(3) The time limitation in subdivision (a) of Section 5405 may
be tolled only by reason of the employee’s mental incompetence
during the time permitted to commence proceedings pursuant to
subdivision (a) of Section 5405.

(4) The term “professional athlete” as used in this subdivision
shall have the same meaning as set forth in paragraph (5) of
subdivision (c) of Section 3600.5.

end delete

begin insert

begin insert SEC. end insert begin insert 2. end insert   

end insert

begin insert Section 5500.6 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

5500.6.  

begin insert (a) end insert begin insert   end insert Liability for occupational disease or cumulative
injury which results from exposure solely during employment as
an employee, as defined in subdivision (d) of Section 3351, shall
be limited to those employers in whose employment the employee
was exposed to the hazards of the occupational disease or
cumulative injury during the last day on which the employee was
employed in an occupation exposing the employee to the hazards
of the disease or injury. In the event that none of the employers of
the last day of hazardous employment is insured for workers’
compensation liability, that liability, shall be imposed upon the
last employer exposing the employee to the hazards of the
occupational disease or cumulative injury who has secured
workers’ compensation insurance coverage or an approved
alternative thereto. If, based upon all the evidence presented, the
appeals board or the workers’ compensation judge finds the
existence of cumulative injury or occupational disease, liability
for the cumulative injury or occupational disease shall not be
apportioned to prior employers. However, in determining liability,
evidence of disability due to specific injury, disability due to
non-work-related causes, or disability previously compensated for
by way of a findings and award or order approving compromise
and release, or a voluntary payment of disability, may be admissible
for purposes of apportionment.

begin insert

(b) (1) An employer shall be liable for occupational disease or
cumulative injury to a professional athlete, as defined in Section
3600.5, only if the employer employed the professional athlete
within the last seven nonconsecutive years of the professional
athlete’s occupational exposure to the hazards of the occupational
disease or cumulative injury. If more than one employer that is
subject to this division employed the professional athlete within
the last five years of injurious exposure, liability shall be limited
to employers as provided by Section 5500.5.

end insert begin insert

(2) The amendments made to this section by the act adding this
paragraph shall apply to all claims for benefits pursuant to this
division filed on or after January 1, 2014. The amendments made
to this section by the act adding this paragraph shall not constitute
good cause to reopen any final decision, order, or award.

end insert

begin insert

begin insert SEC. end insert begin insert 3. end insert   

end insert

begin insert It is the intent of the Legislature that the changes made
to law by this act shall only affect covered professional athletes
and covered employers of professional athletes. The changes made
to law by this act shall not affect any other employer or employee
in the State of California. end insert

begin insert

begin insert SEC. end insert begin insert 4. end insert   

end insert begin insert

It is the intent of the Legislature that the changes made
to law by this act shall have no impact or alter in any way the
decision of the court in Bowen v. Workers’ Comp. Appeals Bd.
(1999) 73 Cal.App.4th 15.

end insert

begin insert

begin insert SEC. end insert begin insert 5. end insert   

end insert

begin insert It is the intent of the Legislature that the decision of
the Workers’ Compensation Appeals Board in Wesley Carroll v.
Cincinnati Bengals, et al. (2013) 78 Cal.Comp.Cases ____
(ADJ2295331) (WCAB En Banc) be limited to professional
athletes, as defined in this act. end insert

begin insert

begin insert SEC. end insert begin insert 6. end insert   

end insert

begin insert It is the intent of the Legislature that the changes made
to law by this act have no impact or alter in any way the decision
of the Workers’ Compensation Appeals Board in Dennis McKinley
v. Arizona Cardinals et al. (2013) 78 CCC 23 (ADJ7460656). end insert