BILL ANALYSIS Ó SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS Senator Tony Mendoza, Chair 2015 - 2016 Regular Bill No: SB 897 Hearing Date: April 6, 2016 ----------------------------------------------------------------- |Author: |Roth | |-----------+-----------------------------------------------------| |Version: |March 29, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Gideon Baum | | | | ----------------------------------------------------------------- Subject: Workers' compensation KEY ISSUE Should the Legislature grant an additional year of injury leave for police officers, firefighters, or sheriffs if they suffer a "catastrophic injury at the hands of another" during active duty or through active firefighting operations? 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 provides for the payment of indemnity benefits if the occupational injury causes temporary or permanent disability which prevents the worker from returning to his or her job. In the case of temporary disability payments, the benefit is SB 897 (Roth) Page 2 of ? two-thirds of the weekly loss in wages due to disability for up to 104 weeks within 5 years (Labor Code §§4650, 4653, 4654 and 4656). Existing law provides that certain public employees employed on a regular, full-time basis regardless of their period of service, who incur on the job injury or illness, are entitled to receive disability payment for up to one year. These employees include: a) City police officers; b) City, county, or district firefighters; c) Sheriffs; d) Inspectors, investigators, detectives, or personnel with comparable titles in any district attorney's office; e) County probation officers, group counselors, or juvenile services officers; and f) Lifeguards employed by Los Angeles County or the City of San Diego. This leave of absence is set forth in Labor Code Section 4850 and is sometimes referred to as "4850 leave". This bill would extend an additional year of injury leave for city police officers, city, county, or district firefighters, and sheriffs if: 1) The injured worker is employed on a regular, full-time basis regardless of their period of service; 2) The injured worker suffers a "catastrophic injury at the hands of another" during active duty through the actions of another or through active firefighting operations without respect to the cause of the fire. A catastrophic injury at the hands of another is defined by SB 897 as including: 1) Severe burns; 2) Severe bodily injuries resulting from a building collapse; and 3) Severe bodily injuries resulting from a shooting, stabbing, or other battery. This bill also excludes peace officers from the City and County SB 897 (Roth) Page 3 of ? of San Francisco and also clarifies that the injury leave cannot be longer than 104 weeks. COMMENTS 1. Need for this bill? As was discussed above, California's workers' compensation system provides a temporary disability (TD) indemnity benefit for injured workers who are temporarily unable to return to work. TD benefits replace up to 66% of an injured workers' pay for up to 2 years. However, for California's peace officers, state law requires that 100% of the injured worker's pay is provided in lieu of the first year of TD benefits. This is known as "4850 leave", named after the Labor Code section which creates the leave. SB 897 would grant an additional year of paid leave for police officers, sheriffs, and firefighters that suffer a catastrophic injury at the hands of another. An example cited by the author's office is Officer Andrew Tachias, who is with the Riverside Police Department. In 2013, Officer Tachias was ambushed and shot 9 times by ex-LAPD Police Officer Charles Dorner. In the same attack, Officer Tachias's partner, Officer Michael Crain, was killed. As of February of this year, Officer Tachias has returned to duty. However, it took him 3 years of intensive work to be able to do so. While the City of Riverside supported Officer Tachias's efforts to return to active duty, such an outcome is not currently required under existing law. SB 897 would require that, in cases like Officer Tachias, the injured officer would be eligible for up to two years of paid leave without reduction. 2. A Brief Word on Potential Pitfalls with SB 897: In conversations with Committee Staff, Senator Roth's office has conveyed that SB 897 is a work in progress. As SB 897 moves through the policy process, the author and the Committee may wish to consider a few points: "High Velocity Eye Injuries" and the Need for Specificity SB 897 (Roth) Page 4 of ? In 2004, the Legislature passed SB 899 (Poochigian), which was a significant reform of the entire workers' compensation system. As a part of the bill, TD benefits were limited to 104 weeks, except in certain specified cases. In those cases, TD benefits were kept at the pre-2004 level of 240 weeks. One of the exceptions was for "high velocity eye injuries", which is the type of injury that evokes strong emotions and intuitively makes sense as an exception to the TD cap of 104 weeks. However, the statute is silent on what is a high velocity eye injury. Does it involve a projectile? Does the projectile need to be moving at a specific speed? And why should a high velocity eye injury be singled out when a low velocity eye injury could result in a similar injury? As recently as 2009, litigation on if a high velocity eye injury needed to directly involve the eyeball was being heard by the Worker' Compensation Appeals Board. In short, specificity in workers' compensation legislation is important. With SB 897, the use of the modifier "severe" (such as severe burns or severe bodily injury) is largely undefined. The author may wish to consider specifying what would constitute "severe" in this context. One method may be through the use of the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th Edition). The Guides provide a variety of examples of specific injuries and their impairment classes. As an injured worker's impairment needs to be measured through the use of the Guides under existing law, this could be a useful tool to provide specificity and avoid unintended litigation. Wage Replacement Leave and Disability Retirement Under existing law, an injured peace officer may opt for a disability retirement pension, which, barring settlement, must be at least 50% of his or her highest salary. Some stakeholders have argued that 4850 leave simply delays the date of the disability retirement, rather than incentivizing return to work. Senator Roth's Office has stated to the Committee staff that they will attempt to address this issue. One possible solution would be to divide the catastrophic leave into two 6 month periods. After 18 months of leave (4850 leave plus 6 months from SB 897), it may be possible for the SB 897 (Roth) Page 5 of ? injured worker and his or her employer to figure out if returning to active duty is feasible. If it is, then an additional 6 months of leave is granted. If not, the injured worker would still be entitled to 6 months of TD, perhaps followed by a disability retirement, but would not be eligible for the SB 897 leave. 3. Proponent Arguments : Proponents note that California's firefighters, police officers, and sheriffs face significant risks on the job, including a higher likelihood of injury. Proponents argue that the existing leave provisions reflect that, as the Governor and Legislature wanted to ensure that a peace officer facing those risks would not face financial devastation. Proponents argue that AB 897 continues this tradition by granting California's firefighters, police officers, and sheriffs an additional year of leave in order to return to active duty after a catastrophic injury. Proponents note that this extra year will allow firefighters, police officers, and sheriffs to heal from their injuries and return to work when they can, rather than rush back to work still injured and possibly hurt themselves and others. 4. Opponent Arguments : Opponents note that, under current law, police officers, sheriffs, and firefighters have access to a year of paid leave under Labor Code Section 4850, as well as a year of 2/3 wage replacement through TD benefits, both of which are tax-free benefits. Opponents argue that these benefits are significant, and are paid out by self-insured cities and counties on a pay-as-you-go basis. Opponents argue that requiring additional disability benefits will require cities and counties to remove funding from existing services, without necessarily resulting in the injured police officer, sheriff, or fire fighter returning to work. 5. Prior Legislation : SB 527 (Block), Chapter 66, Statutes of 2013, extended "4850 leave" to lifeguards employed by the City of San Diego. SUPPORT SB 897 (Roth) Page 6 of ? California Professional Firefighters (Sponsor) Association of Orange County Deputy Sheriffs California Statewide Law Enforcement Association Laborers International Union of North America Locals 777 & 792 Long Beach Police Officers Association Peace Officers Research Association of California Sacramento County Deputy Sheriffs' Association OPPOSITION California Association of Joint Powers Authorities California Special Districts Association California State Association of Counties California State Association of Counties- Excess Insurance Authority California State Sheriffs' Association City of Anderson City of Fountain Valley City of Menifee City of Rancho Cucamonga City of Redding City of San Luis Obispo City of Torrance City of Ventura League of California Cities Mayor and City Council of the City of Sacramento Rural County Representatives of California -- END --