BILL NUMBER: AB 1309 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 28, 2013
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 Section
3600.5 and 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 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 exempt an employee hired outside of this state
, his or her dependents, and his or her employer
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, ice
hockey, or soccer, (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 20% of his or her duty days, as defined,
in the state. The exemption would not apply to an employer
of a professional athlete and his or her employer
if the professional athlete has, over the course of his or her
career, been employed worked for 2
or more seasons or longer by for
a California California-based team or
teams , as defined, or performed
worked 20% or more of his or her duty days in California
or for a California-based team, and, over the course of his or her
professional career, worked for fewer than 7 seasons for any team
other than a California-based team . 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 these changes apply to all pending
claims for benefits filed on or after January 1, 2014,
September 15, 2013, 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 working 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
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
work 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,
satisfied, 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) 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:
are satisfied:
(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
work while in this state.
(2) If the conditions described in In any
case in which paragraph (1) are is
satisfied, the benefits under the workers' compensation
insurance or similar laws of the other state, and other
remedies under those laws, are shall be
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)
state .
(3) For purposes of this subdivision, a A
professional athlete is 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 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
during that 365-day period in 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.
(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.
(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) (1) With respect to an occupational disease or cumulative
injury, a professional athlete and his or her employer shall be
exempt from this division when all of the professional athlete's
employers in his or her last year of work as a professional athlete
are exempt from this division pursuant to subdivision (c) or any
other law, unless both of the following conditions are satisfied:
(A) The professional athlete has, over the course of his or her
professional athletic career, worked for two or more seasons for a
California-based team or teams, or the professional athlete has, over
the course of his or her professional athletic career, worked 20
percent or more of his or her duty days either in California or for a
California-based team. The percentage of a professional athletic
career worked either within California or for a California-based team
shall be determined solely by taking the number of duty days the
professional athlete worked for a California-based team or teams,
plus the number of duty days the professional athlete worked as a
professional athlete in California for any team other than a
California-based team, and dividing that number by the total number
of duty days the professional athlete was employed anywhere as a
professional athlete.
(B) The professional athlete has, over the course of his or her
professional athletic career, worked for fewer than seven seasons for
any team or teams other than a California-based team or teams as
defined in this section.
(2) When subparagraphs (A) and (B) of paragraph (1) are both
satisfied, liability for the professional athlete's occupational
disease or cumulative injury shall be determined in accordance with
Section 5500.5.
(e) An employer of professional athletes, other than a
California-based team, shall be exempt from Article 4 (commencing
with Section 3550) of Chapter 2, and subdivisions (a) to (c),
inclusive, of Section 5401.
(e)
(f) 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.
(g) For purposes of this section, the following definitions apply:
(1) The term "professional athlete" means an athlete who is
employed at either a minor or major league level in the sport of
baseball, basketball, football, ice hockey, or soccer.
(2) The term "California-based team" means a team that plays a
majority of its home games in California.
(3) The term "duty day" means any day during the course of a
season the professional athlete works under the direction and control
of his or her employer pursuant to a player contract.
(4) The term "season" means the period from the date of the first
preseason team activity for that contract year, through the date of
the last game the professional athlete's team played during the same
contract year.
(h) The amendments made to this section by the act adding this
subdivision apply to all claims for benefits pursuant to this
division filed on or after September 15, 2013, but do not apply to a
case in which a final adjudication has been rendered prior to January
1, 2014. The amendments made to this section by the act adding this
subdivision shall not constitute good cause to reopen any final
decision, order, or award.
(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of this section that can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
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. SEC. 2. It is the intent of
the Legislature that the changes made to law by this act shall only
affect covered specified professional
athletes and covered employers of specified
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. SEC. 3. 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. SEC. 4. 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. SEC. 5. 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).