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 --