BILL ANALYSIS Ó
AB 2451
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON INSURANCE
Jose Solorio, Chair
AB 2451 (John A. Perez) - As Amended: April 19, 2012
SUBJECT : Workers' compensation: death benefits
SUMMARY : Extends the statute of limitations on filing a
workers' compensation claim for death benefits to one year after
the date of death when death resulted from a cause for which
compensability is presumed. Specifically, this bill :
1)Provides that the period within which proceedings to claim the
workers' compensation death benefit payable to a dependent or
dependents of a firefighter or peace officer, when death is
due to a condition for which compensability is presumed, is
one year from the date of death.
2)Specifies the conditions that allow compensability to be
presumed that are subject to this new statute of limitations
to be:
a) Hernia, pneumonia or heart trouble;
b) Cancer, including leukemia;
c) Tuberculosis; or
d) Blood-borne infectious diseases and
methicillin-resistant Staphylococcus aureus skin infection
(MRSA).
EXISTING LAW :
1)Establishes a comprehensive system for providing benefits to
workers injured on the job, including death benefits payable
to dependents.
2)Provides generally that an injured worker bears the burden to
establish that the injury for which benefits are claimed arose
out of or in the course of employment.
3)Provides, for specified peace officer and firefighter
employees, that certain injuries or conditions are presumed to
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have arisen out of or in the course of employment.
4)Specifies in great detail which firefighters and peace
officers are entitled to the various presumptions.
5)Provides for a statute of limitations defining the period
within which a claim for benefits must be filed, and with
respect to death benefits, specifies that the claim must be
filed within one year of:
a) The date of death, if death occurs less than one year
from the date of injury, or
b) The date of last furnishing benefits, if death occurs
more than one year from the date of injury, or
c) The date of death, if death occurs more than one year
after the date of injury and compensation benefits have
been furnished.
6)Establishes special rules governing the period within which
proceedings must be commenced for asbestosis and HIV/AIDS
cases.
7)Provides further that, notwithstanding the above limitations,
no proceedings may be commenced later than one year after the
date of death or 240 weeks after the date of injury.
8)Establishes a schedule of death benefits, with specific
amounts due depending on whether the dependent is fully or
partially dependent, and depending on the number of fully or
partially dependent beneficiaries. Depending on the
circumstances, the death benefits can be in excess of
$300,000.
9)Provides that when a person otherwise entitled to death
benefits has no dependents, the benefits shall be paid to the
state, and credited to the uninsured employers fund, which
pays for benefits to injured workers who were employed by an
illegally uninsured employer.
10)Specifies that questions about full or partial dependency,
and questions about who the dependents are, shall be
determined "in accordance with the facts as they exist at the
time of the injury of the employee." (Emphasis added.)
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11)Provides that no person is a dependent unless:
a) He or she is, in good faith, a member of the family or
household of the employee, or
b) 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, or
nephew or niece of the employee.
FISCAL EFFECT : Undetermined, but likely major new obligations,
potentially in the hundreds of millions of dollars, to both
state and local governments as a result of the substantial
increase in the number of peace officers and firefighters who
would now be eligible for a death benefit.
COMMENTS :
1)Purpose . According to the author, this bill is necessary
because surviving family members of fallen firefighters and
peace officers who are "timed out" of the right to receive
death benefits should be entitled to the same rules
attributable to asbestos-related cancer or HIV-related
diseases.
More specifically, proponents point to cases where the safety
officer is suffering from long-term heart problems, or a long
battle with cancer, or cases where the cancer is temporarily
in remission. In these cases, the employer is well aware of
the existence of the claim, has had the opportunity to reserve
for the claim, but the fact that the injured safety officer is
able to battle the condition long enough to get past the
existing limitations period, the employer is relieved from
paying a death benefit to dependents once the officer finally
succumbs to the illness.
2)Which safety officers does the bill apply to ? The bill
applies to "a firefighter or peace officer" who dies from an
injury "defined in" the Labor Code sections that establish the
various presumptions of compensability. The bill's language
does not appear to restrict this new extended statute of
limitations to those safety officers that are specifically
afforded the right to the presumption by those statutes.
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Rather, any former employee who can fit into the broad
category of firefighter or peace officer, even if not covered
by the presumption statute in the first place, but whose
"injury" is "defined in" those statutes, could arguably be
entitled to this new extended statute of limitations.
The author may wish to consider amending the bill to clarify
which safety officers would be entitled to the bill's
provisions.
3)Which dependents ? Existing law defining dependents is broad,
encompassing an extended range of formal family members, but
also including members of the employee's household who in fact
have a dependent relationship to the employee even if not one
of the specifically recognized familial relations. But as to
all of these potential dependents, the law provides that the
determination of dependent status is a factual question
determined by the facts that exist "at the time of the injury
of the employee."
In the typical case, this is not a complicated matter, even with
respect to some of the presumptions where death does not occur
relatively contemporaneously with the injury. However, with
the extended statute of limitations proposed by the bill, many
years, indeed, many decades could transpire from an initial
suggestion of cancer or heart disease, and the ultimate death
related to these conditions. As a result, the dependents
defined by existing law may be factually no longer dependent
on the employee. Similarly, as a result of the death or
divorce of a spouse, or other substantial familial changes,
new factual dependents could find themselves without the right
to the death benefits provided by the bill. At the same time,
recipients no longer dependent on the employee, but who were
dependent "at the time of the injury," could claim the death
benefits instead of the current factual dependents.
The author may wish to evaluate the extent to which special
rules governing eligible dependents may be appropriate as the
time to claim the benefits is extended further into the
future.
4)Payments to the state . Existing law provides that, in the
event there is a compensable death, but there is no dependent,
the death benefit is payable to the state, to be deposited
into the uninsured employer benefit fund. This is the fund
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that pays workers' compensation benefits to employees working
for an employer that was illegally uninsured at the time of
injury, where the employer is now out of business or otherwise
not reachable to pay the obligations. The way the bill is
currently structured, it appears that even where there is no
dependent, the public agency would still be required to make
this payment to the state, even though the death occurs many
years into the future.
There is no doubt that this is an important state function, but
in light of the fiscal challenges state and local governments
currently face, the author may wish to consider if this
obligation should also be included in the extended statute of
limitations provided by the bill.
5)Purpose of presumptions . The general rationale for presuming
certain injuries or conditions to be job related is that the
conditions are intuitively likely to be job related, but it is
difficult for the employee to prove. As a result, certain
public safety employees have been granted this special rule in
recognition of the inherent dangers they face on the job.
Opponents, a coalition of local government employers, point
out that the bill has no limit on how far into the future the
limitations period is extended. Thus, any retired safety
officer who dies in his or her 80's or 90's of a cancer or
heart related condition would be presumed to have a
work-related cause, and his or her dependents would be
entitled to a death benefit. But with the incidence of cancer
and heart conditions as the cause of death for many elderly
people, the causation for someone 20, 30, or more years
removed from service is much more debatable. The opposition
argues that the cost of these doubtful work-related death
benefits would exceed $60,000,000 annually just for counties,
without reference to other local governments' or the state's
costs.
6)HIV and asbestosis . Opponents argue that there are valid
policy reasons for the extended limitations periods for
HIV-related and asbestosis conditions. Even far into the
future, the likelihood of a job-related connection remains
strong, thus justifying the extended limitations period. In
contrast, in light of the number of people who die of cancer
or heart conditions in all age groups, the opponents do not
believe the analogy holds.
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7)Past related legislation . In 2004, AB 3051 (Nation and
Vargas) proposed a similar rule to what is being proposed by
AB 2451. AB 3051, however, applied only to firefighters, and
was drafted more narrowly because it would have required that
the death result from an injury that manifested itself in the
original limitations period provided for the various
presumptive injuries. As noted above, AB 2451 extends the
limitations period without limit into the future.
Nonetheless, AB 3051 was vetoed. The veto message sent by
Governor Schwarzenegger provided, in pertinent part:
"This bill extends the statute of limitations for the
collection of death benefits that are presumptively concluded
to be service related. Because current law presumes certain
firefighter injuries to be work-related, this bill will also
increase the potential for the surviving heirs of firefighters
who die from non-work related illnesses to receive workers
compensation death benefits."
The author may wish to consider adopting additional
requirements, such as a requirement that there actually was a
timely workers' compensation claim filed related to the
ultimate cause of death, for the extended limitations period
proposed by the bill to apply.
REGISTERED SUPPORT / OPPOSITION :
Support
California Professional Firefighters (sponsor)
American Federation of State, County and Municipal Employees
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Fraternal Order of Police
California Labor Federation, AFL-CIO
Long Beach Police Officers Association
Los Angeles County Probation Officers Union
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California (PORAC)
Riverside Sheriff's Association
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Opposition
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Association of California Healthcare Districts
California Coalition on Workers' Compensation
California Special Districts Association
California State Association of Counties
CSAC Excess Insurance Authority
League of California Cities
Los Angeles County
Regional Council or Rural Counties
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086