BILL ANALYSIS Ó
AB 511
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Date of Hearing: May 6, 2015
ASSEMBLY COMMITTEE ON INSURANCE
Tom Daly, Chair
AB 511
(Gipson) - As Amended April 20, 2015
SUBJECT: Workers' compensation
SUMMARY: Expands the categories of peace officers to whom
statutory "presumptions of compensability" apply. Specifically,
this bill :
1)Repeals the listing of the specific categories of peace
officers in six labor code sections that specify that certain
diseases, conditions or injuries are presumed to be work
related.
2)Specifies that full-time peace officers defined in Penal Code
Sections 830 et seq., are entitled to the benefit of the
presumptions that certain diseases or conditions constitute
compensable injuries.
3)Specifies that certain peace officers not defined in Penal
Code Sections 830 et seq., are entitled to the benefit of the
presumptions that certain diseases or conditions constitute
compensable injuries.
4)Specifies that custody assistants, correctional officers,
security officers, or security assistants employed by public
agencies are entitled to the benefit of the presumptions that
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certain diseases or conditions constitute compensable
injuries.
5)Specifies that certain part-time peace officers are entitled
to the cancer presumption and to the presumptions relating to
exposure to certain biochemical substances.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits to be provided to workers whose injuries or
conditions arise out of or in the course of employment.
2)Provides that the injured worker must establish that his or
her injury or condition was work related.
3)Establishes exceptions for certain firefighter and peace
officer employees to the requirement that the injured worker
establish that the injury or condition was work related, and
instead grants a presumption that the injury or condition is
work related.
4)Provides that the injuries or conditions that are presumed to
be work related for specified public safety officers include:
a) Cancer;
b) Heart trouble, pneumonia, or hernia;
c) Tuberculosis;
d) Exposure to a biochemical substance;
e) Meningitis.
5)Provides that the presumption of compensability in any of
these circumstances is rebuttable.
6)Defines, in Penal Code sections 830 et seq., the classes of
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peace officers.
FISCAL EFFECT : Undetermined
COMMENTS :
1)Purpose. According to the author, when the initial
presumption laws were enacted, they were intended to apply to
all peace officers. Newer categories of officers, however,
have not been included in the benefits of presumptions because
they are not expressly listed in statute.
2)Background on presumptions. Presumptions have never been
intended to create work related injuries when, in fact, the
injuries in question are not work related. Rather,
presumptions of compensability have been adopted, some many
decades ago, to reflect unique circumstances where injuries or
illnesses appear to logically be work related, but it is
difficult for the safety officer to prove it is work related.
There has clearly been some slippage over time from a rigorous
application of this rationale, but it remains the underlying
premise of presuming injuries or illnesses to be work related.
This is why the presumption statutes have extensive lists of
the peace officers who qualify - each category of peace
officer has made the policy argument that they are similar to
existing recipients of the presumption, and should similarly
receive the benefit.
In this regard, the proponents of the bill note that many
classes of peace officer - such as airport police, school
district police, transit police, among others - simply did not
exist when the presumptions were first established. Rather
than piecemeal additions to the statute, all peace officers
should be treated the same.
In addition, with very narrow exceptions for privately employed
firefighters for public facilities, presumptions of
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compensability have been granted only to public safety
officers - fire and peace officer employees. Thus, the costs
of presumptions are borne only by state and local government
employers.
3)Non-Peace Officers. The bill applies to several types of
public employees who are not peace officers -- custody
assistants, correctional officers, security officers, or
security assistants. In some circumstances, some of these
employees may perform functions similar to those performed by
peace officers. However, it is unclear what employees are
included within this class, particularly the "assistant" job
descriptions, and what relationship those employment classes
have to peace officer classifications. Proponents have not
provided a more specific definition of who these non-peace
officers might be, or why they should be afforded special
peace officer benefits.
4)Non Section 830 Peace Officers. The bill specifically
includes peace officers who are not defined in Penal Code
Section 830, et seq. It is not clear who these peace officers
might be, who they work for, what qualifies them as peace
officers, or how a public employer would determine whether or
not an employee is a "peace officer" even though not defined
by the basic law that defines "peace officer."
5)Presumptions are rebuttable. As a matter of law, public
employers have the opportunity to rebut the presumption, and
establish that the injury or condition was not the result of
employment. As a practical matter, however, presumptions are
rarely rebutted. Opponents argue that the virtual
impossibility of proving a negative - especially with respect
to the most commonly presumed injuries such as heart trouble
or cancer - renders the presumptions functionally conclusive.
6)Are all peace officers similarly situated? The premise of the
bill is that all of the various presumptions are statutory
benefits that are applicable to peace officers, and it makes
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no sense to grant these benefits to some, but not all, peace
officers. However, not all peace officers are, in fact, the
same. While the examples are too numerous to list, a few are
illustrative of the argument. Welfare fraud investigators
would be added to the list of peace officers who would be
entitled to the full range of presumptions. Is it logical to
presume that any cancer these officers contract must have been
work related? Or is it logical to presume that a hernia must
have been work related due to the heavy equipment that street
police must carry, but that welfare fraud investigators do
not? These and numerous other examples are the reason why,
according to opponents, the law has been limited to those
peace officers who have made the policy argument that their
unique circumstances suggest that their injuries or conditions
are likely to be work related, but should be granted the
presumption due to the difficulty of proof in their specific
cases.
7)Workers' compensation is not the only government-provided
benefit for these employees. Opponents have suggested that
the implication that these peace officers must be granted the
benefit of presumptions, or they will be left out in the cold,
is erroneous. First, the peace officer can always do what
every other employee must do - prove the injury or illness is
work related. Second, even if the peace officer cannot carry
that burden of proof, they have health insurance and other
employee benefits that assure their conditions can be treated.
8)Prior legislation. Last year, the Legislature passed AB 2052
(Gonzalez), which also proposed an expansion of the class of
employees entitled to the benefit of presumptions of
compensability. AB 511 is broader than AB 2052, as it
includes part-time peace officers, non-Section 830 peace
officers, as well as certain classes of employee who are not
considered peace officers. Despite being narrower than AB
511, the Governor vetoed AB 2052. The Governor's veto message
provided, in part:
"Current workers' compensation law provides coverage to
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certain categories of peace officers and firefighters for
presumed compensable injuries. These presumptions, which
include cancer, heart disease, pneumonia, hernia,
bio-chemical illness, tuberculosis, and meningitis, were
enacted in response to the types of hazards which these
workers face. Over the course of many decades, California
has expanded both the diseases and the kinds of safety
employees which these presumptions cover.
This measure seeks to expand coverage to dozens of
additional categories of officers without real evidence that
these officers confront the hazards that gave rise to the
presumptions codified in existing law. Presumptions should
be used rarely and only when justified by clear and
convincing scientific evidence."
It is not clear what clear and convincing scientific evidence
has been developed since the Governor's veto.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County Professional Peace Officers Association
Opposition
Acclamation Insurance Management Services (AIMS)
Allied Managed Care (AMC)
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Alpha Fund
Association of California Healthcare Districts (ACHD)
California Association of Joint Powers Authorities (CAJPA)
California Coalition on Workers' Compensation (CCWC)
California State Association of Counties (CSAC)
CSAC Excess Insurance Authority (CSAC-EIA)
League of California Cities (LCC)
Rural County Representatives of California (RCRC)
Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086
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