BILL NUMBER: AB 1309 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 13, 2013
AMENDED IN ASSEMBLY APRIL 25, 2013
AMENDED IN ASSEMBLY APRIL 10, 2013
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 5412
5500.6 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. 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.
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 provide that exempt
an employee hired outside of this state, his or her dependents, and
his or her employer shall be exempt from the
occupational disease and cumulative injury provisions of
this state's workers' compensation laws if (1) 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, and (2) that
professional athlete is temporarily within this state doing work for
his or her employer , 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 . This bill would deem a
professional athlete to be temporarily within the 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 90 total 20% of
his or her duty days of required services within the
state under the direction and control of the employer
, 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 . 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.
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
The bill would provide that these changes apply to all
pending claims for benefits, as specified
benefits filed on or after January 1, 2014, as specified .
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) Any With respect to an
occupational disease or cumulative injury, a 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,
then the benefits under the laws of the other
state, and other remedies under those laws, shall be
are the exclusive remedy against the employer
for any occupational disease or cumulative injury, whether
resulting in death or not, received by the employee while working
for the employer in this state , except as described in
subdivision (d) .
(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.
(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.
(5)
(4) The term "professional athlete" for purposes of
this subdivision and subdivision (d) means an athlete who
is employed at either a minor or major league level in the sport of
baseball, basketball, football, hockey, or soccer.
(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.
(d) (1) Subdivision (c) does not apply to any employer of a
professional athlete if either of the following is applicable:
(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.
(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.
(2) For the purposes of this subdivision, a California team is one
that plays a majority of its home games in California.
(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.
(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.
(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.
(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.
(d)
( e) 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.
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.
SEC. 2. Section 5500.6 of the
Labor Code is amended to read:
5500.6. (a) 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.
(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.
(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.
SEC. 3. 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.
SEC. 4. 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.
SEC. 5. 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.
SEC. 6. 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).