BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 25, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 1373
Author: Speaker John A. Perez
As Introduced/Amended: February 22, 2013
SUBJECT
Workers' compensation: firefighters and peace officers.
KEY ISSUE
Should the Legislature extend the timelines that limit a
dependent from filing for workers' compensation death benefits
if the deceased worker died of Cancer, Tuberculosis,
Methicillin-Resistant Staphylococcus aureus (MRSA) skin
infections, or a bloodborne infectious disease?
Should the Legislature extend the timelines for a dependent
specified above to file for workers' compensation death benefits
for an undefined and indeterminate period of time?
ANALYSIS
Existing law establishes a workers' compensation system that
provides benefits to an employee who suffers from an injury or
illness that arises out of and in the course of employment,
irrespective of fault. This system requires all employers to
secure payment of benefits by either securing the consent of the
Department of Industrial Relations to self-insure or by securing
insurance against liability from an insurance company duly
authorized by the state.
Existing law creates a series of disputable presumptions of an
occupational injury for peace and safety officers for the
purposes of the workers' compensation system. These
presumptions include:
Heart disease;
Hernias;
Pneumonia;
Cancer;
Meningitis;
Tuberculosis;
Methicillin-resistant Staphylococcus aureus (MRSA) skin
infections; and
Bloodborne infectious disease.
The compensation awarded for these injuries must include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by workers compensation law. These
presumptions tend to run for 5 to 10 years commencing on their
last day of employment, depending on the injury and the peace
officer classification involved. (Labor Code §§3212 to 3213.2)
Existing law provides that the presumptions listed above are
disputable and may be controverted by evidence. However, unless
controverted, the Workers' Compensation Appeals Board must find
is accordance with the presumption. (Labor Code §§3212 to
3213.2)
Existing law provides for the payment of a workers' compensation
indemnity death benefit. The amount of the benefit is
determined by the date of injury, the number dependents, and if
those dependents are partially dependent or wholly dependent on
the deceased worker.
(Labor Code §§ 4700 to 4709)
Existing law provides that no person is a dependent of any
deceased employee unless in good faith a member of the family or
household of the employee, or unless the person bears to the
employee the relation of 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, nephew or niece. (Labor Code §3503)
Existing law requires, with certain exceptions , that the
collection of workers' compensation death benefits must be
Hearing Date: June 26, 2013 AB 1373
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Senate Committee on Labor and Industrial Relations
commenced one year from:
1) The date of death where death occurs within one year
from date of injury; or
2) The date of last furnishing of any benefits where death
occurs more than one year from the date of injury; or
3) The date of death, where death occurs more than one year
after the date of injury and compensation benefits have
been furnished.
No such proceedings may be commenced more than one year after
the date of death, nor more than 240 weeks from the date of
injury.
(Labor Code §5405)
The exceptions to the above timelines are as follows:
a) In the case of the death of an asbestos worker or
firefighter from asbestosis, the period within which
proceedings may be commenced for the collection of workers'
compensation death benefits is one year from the date of
death;
b) In the case of the death of a healthcare worker,
firefighter, peace officer, or correctional officer from
HIV-related disease, the period within which proceedings
may be commenced for the collection of workers'
compensation death benefits is one year from the date of
death, provided they meet certain requirements.
(Labor Code §§ 5406.5 and 5406.6)
Existing law defines 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 such disability was caused by his present or
prior employment.
(Labor Code §5412)
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This bill would provide an undefined and indeterminate
extension, but in no case later than one year after death, for
dependents of deceased firefighters and peace officers who died
any of the following:
Cancer;
Tuberculosis;
Methicillin-resistant Staphylococcus aureus (MRSA) skin
infections; or
Bloodborne infectious disease.
COMMENTS
1. A Brief Discussion on Presumptions and Death Benefits:
Presumptions for peace officers and firefighters have been a
part of workers' compensation law since 1917. While their
scope has grown, the fundamental idea behind each and every
presumption remains the same: these are injuries that are
intuitively likely to be job related, and therefore
occupational injuries compensable in the workers' compensation
system, but are difficult for the employee to prove. A good
example of this is the "heart trouble" presumption, which was
created in 1939: while many individuals suffer from heart
ailments for a variety of different reasons, the jobs we asked
firefighters and peace officers to fulfill are very stressful
and take a toll on their heart. Therefore, for these
individuals, the Legislative granted a presumption that a
firefighter or peace officer's "heart trouble" is
occupational.
Even with these presumptions in place, however, limits on the
ability of any individual to collect workers' compensation
death benefits, which can generally be defined as one year
from the date of death if the injury was within 240 weeks of
the initial injury, or about 4 years, were in place for all
workers until 1980. Even when exceptions to the workers'
compensation death benefit timelines were approved by the
Legislative in 1999 and 2003, they were quite limited: it was
for asbestos workers who died from asbestosis, which is a lung
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Senate Committee on Labor and Industrial Relations
ailment that can only come from long-term exposure to
asbestos, is universally recognized as an occupational cancer,
and can take 30 years to manifest itself.
Two other changes have been made to death benefit timelines
since then. In 1999, it was for healthcare worker,
firefighter, peace officer, or correctional officer from
HIV-related disease, but only when the injury was recognize to
be occupational prior to the injured worker's death. Then, in
2003, firefighters were added to the asbestosis exception due
to the significant and long-term occupational exposure to
asbestos due to its prominence as a building material. Since
then, the timelines have remained unchanged.
2. A Brief Discussion on TB, MRSA & Bloodborne Pathogens :
As noted above, AB 1373 covers dependents of firefighters or
peace offices who died of cancer, tuberculosis, MRSA skin
infections, or bloodborne skin infections. However, with the
exception of cancer, it would be an unlikely scenario where
the date of injury and death would fall outside of the 240
week period (60 months). For example, the treatment regimen
suggested by the Center for Disease Control (CDC) for
antibiotic-resistant tuberculosis is 6 months to 2 years. The
success rate of these treatments is quite high, and the
mortality rate of tuberculosis has fallen consistently since
1990 according to CDC data.
Similarly, the incubation period for MRSA skin infections is 8
minutes to 10 hours, with clinical signs manifesting in 4 to
10 days. Bloodborne pathogens, on the other hand, vary
significantly. However, the rates of infection on the
relevant bloodborne pathogens that are not covered by existing
law (Hepatitis B & C) have declined significantly since 2000,
suggesting fatalities by bloodborne pathogens would also be
somewhat rare, though possibly outside of the 240 week period.
In short, the inclusion of tuberculosis, MRSA, and bloodborne
pathogens in AB 1373 is unlikely to lead to significant
changes in workers' compensation utilization.
3. A Brief Discussion on Firefighters, Peace Officers, Cancer and
Hearing Date: June 26, 2013 AB 1373
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Future Research:
Several epidemiological studies have suggested that
firefighters have higher incidences of cancer due to their
exposure to contaminants. This is particularly true of
bladder cancer, pancreatic cancer, and lung cancer. However,
the sample sizes of the studies known to Committee Staff were
relatively small.
In 2014, the National Institute on Occupational Safety and
Health (NIOSH) will be releasing a study of cancer incidence
in firefighters, looking at more than 30,000 firefighters,
making it one of the largest studies in this area. A similar
study started by the Australian government in 2011 will look
at 162,000 former and current firefighters, should be released
by the end of this year. Together, both of those studies will
shed a tremendous amount of light of firefighters, incidences
of cancer (particularly types of cancer), and mortality.
On the topic of the cost, the Commission on Health and Safety
and Workers' Compensation (CHSWC) recently heard a
presentation that sought to quantify the costs of extending
the timelines for collection of workers' compensation death
benefits for firefighters and peace officers. While specific
dollar amounts were unavailable, the presenter estimated a
7.7% to 14.8% increase in death benefits if the timeline was
extended to 480 weeks (10 years), assuming that the increase
in time does not lead to a marked increase in claims.
3. Proposed Amendments:
Currently, AB 1373 is silent on how long the statute of
limitations is extended for filing for workers' compensation
death benefits. As was noted above, the CHSWC presentation
gave guidance on expected costs and impacts, which give the
Legislature reasonable guidance on the impact of AB 1373 on
public entities. By selecting one of the studied intervals,
the Committee would be able to frame the bill through the lens
of emerging research and also provide greater certainty for
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the policy discussion.
Therefore, the Committee may wish to strike the "blank" on
page 2, line 24 and insert "480 from the date of injury".
4. Proponent Arguments :
Proponents argue that existing law is not meeting the needs of
California's firefighters and peace officers. Proponents note
that if a firefighter or peace officer dies of an occupational
disease more than five years after being diagnosed with the
disease, his or her family members are unable to claim a death
benefit. With occupational injuries such as cancer, the
timeframe between when the injury was discovered and when the
worker succumbs to the injury may be longer than 5 years. In
these cases, proponents argue that the families of
firefighters and peace officers should not be denied their
right to workers' compensation death benefits due to their
families.
5. Opponent Arguments :
Opponents argue that AB 1373 will dramatically increase costs
on local governments and counties at a time when budgets are
limited and workers' compensation costs are rising. Opponents
argue that AB 1373 does not act like existing presumptions or
exceptions to the statute of limitations on workers'
compensation death benefits, as there are no limits on when
such claims could be filed. Opponents also note that this
could have significant impacts, as it will impact all
firefighters and peace officers currently employed, but also
all currently living retirees that are peace officers or
firefighters. Due to this, the City of Torrance alone places
the cost of complying with AB 2451 at more than $25 million
annually.
6. Prior Legislation :
AB 2451 (Perez) would have allowed dependents of a firefighter
or peace officer who dies of certain occupational ailments to
file for workers' compensation death 480 weeks from the date
of injury. AB 2451 was vetoed by Governor Brown. In his veto
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message, Governor Brown cited the fiscal impacts and the lack
of data, and also noted the following:
"I understand that the National Institute for Occupational
Safety and Health is in the midst of one of the largest
studies of firefighters and risks of death from cancer and
other job related disease ever conducted. It is my sincere
hope that this study, as well as data collected through our
comprehensive reform of the workers' compensation system, will
provide a basis to make a more informed policy and research
based decision on this question in the future."
SUPPORT
Association for Los Angeles Deputy Sheriffs (Co-sponsor)
California Professional Firefighters (Co-sponsor)
Los Angeles County Probation Officers Union (Co-sponsor)
Los Angeles Police Protective League (Co-sponsor)
Peace Officers Research Association of California (PORAC)
(Co-sponsor)
Riverside Sheriffs' Association (Co-sponsor)
American Federation of State, County and Municipal Employees,
Local 685
Association of Orange County Deputy Sheriffs'
California Fraternal Order of Police
California Labor Federation, AFL-CIO
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
OPPOSITION
Acclamation Insurance Management Services (unless amended)
Allied Managed Care (unless amended)
California Association of Joint Powers Authorities (CAJPA)
California Coalition on Workers' Compensation
California Joint Powers Authorities
California State Association of Counties
City of Cypress
City of Long Beach
Hearing Date: June 26, 2013 AB 1373
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City of South San Francisco
City of Torrance
City of Visalia
County of San Bernardino
CSAC EIA California Joint Powers Authorities
League of California Cities
Los Angeles County Board of Supervisors
Rural County Representatives of California
Santa Cruz County Fire Agencies Insurance Group
The City of Santa Barbara
The City of Torrance
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