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
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|Author: |Roth |
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|Version: |March 29, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Gideon Baum |
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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
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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
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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
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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
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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
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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
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