BILL ANALYSIS Ó
AB 2451
Page 1
GOVERNOR'S VETO
AB 2451 (John A. Pérez)
As Amended August 20, 2012
2/3 vote
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|ASSEMBLY: |69-4 |(May 10, 2012) |SENATE: |21-8 |(August 23, |
| | | | | |2012) |
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|ASSEMBLY: |57-19|(August 28, | | | |
| | |2012) | | | |
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Original Committee Reference: INS.
SUMMARY : Extends the statute of limitations to allow a safety
officer's dependents to receive workers' compensation death
benefits where the safety officer dies of cancer or other
"presumed" job-related injuries.
The Senate amendments narrow and clarify the bill by:
1)Extending the existing 240 week statute of limitations to 480
weeks.
2)Clarifying that the recipient of the benefits must be a
dependent at the time of the death of the safety officer.
3)Clarifying that the "date of injury" must have occurred during
the safety officer's active service.
4)Limiting the presumed injuries to which the bill applies to
cancer, tuberculosis, and blood-borne infectious diseases.
5)Providing that the extended limitations period does not apply
to cases which have already been finalized.
6)Providing that the extended limitations period does not apply
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to cases where the existing statute of limitations expired
prior to December 31, 2012.
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
have arisen out of or in the course of employment.
4)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;
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.
5)Establishes special rules governing the period within which
proceedings must be commenced for asbestosis and HIV/AIDS
cases.
6)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.
7)Establishes a schedule of death benefits, with specific
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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.
8)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.
9)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."
10)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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Included heart conditions among the conditions for which the
extended statute of limitations would apply.
2)Provided no cap on how far into the future the safety
officer's death could be and still qualify for the dependent
benefit.
3)Retained the rule that dependency was determined as of the
date of injury, not the date of death.
4)Allowed claims in cases where the existing limitations period
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had expired to be revived if death occurred within the bill's
new limitations rule.
COMMENTS : 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 extended. Specifically, proponents point to
cases where the safety officer is suffering from 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.
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. This bill focuses on
the illnesses that are presumed to be job related but which can
linger for extended periods of time, thereby causing unfairness
to the survivors of the safety officer.
In 2004, AB 3051 (Nation and Vargas) proposed a similar rule to
what is being proposed by this bill. AB 3051, however, applied
only to firefighters. 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
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compensation death benefits.
GOVERNOR'S VETO MESSAGE :
California faces fiscal challenges unparalleled since
the Great Depression. While much progress has been
made to reduce our structural deficit, balance our
budget, reform workers' compensation and rein in
spiraling pension costs - - much work remains.
This measure seeks to redress a problem whose scope
is not fully knowable. Proponents cite the case of
the firefighter who dies a lingering and painful
death from cancer and note that if that death occurs
even one day past an arbitrary statute of limitation
- originally established in 1913 - the surviving
dependent family members are denied substantial death
benefits.
Meanwhile opponents decry any expansion of this
nearly 100 year old limitation as wildly fiscally
imprudent, opening the doors to fiscal ruin and
damnation of our efforts to restore fiscal sanity to
our state.
What is needed is rational, thoughtful consideration
of balancing the serious fiscal constraints faced at
all levels of government against our shared priority
to adequately and fairly compensate the families of
those public safety heroes who succumb to
work-related injuries and disease.
Unfortunately, little more than anecdotal evidence is
available to base such deliberations upon. If deaths
due to cancer for firefighters and peace officers
approximate, let alone exceed, those of the general
population, we can surmise the potential impact of
doubling the statute of limitations. It could
increase costs to the state by tens of millions of
dollars and at the local level by hundreds of
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millions. Alternatively, there is little credible
evidence that the circumstance this measure intends
to address occurs other than rarely, yet tragically.
In the later circumstance the costs would be modest
and reasonable.
I understand that the National Institute for
Occupational Safety and Health is in the midst of one
of the largest studies of firefighters and risks of
death from cancer and other job related disease ever
conducted. It is my sincere hope that this study, as
well as data collected through our comprehensive
reform of the workers' compensation system, will
provide a basis to make a more informed policy and
research based decision on this question in the
future.
In the interim, I cannot expose state and local
governments to the serious fiscal risks enactment of
this measure may entail. I reserve the option to
revisit this question upon the availability of more
thorough research and study of this matter and direct
my Department of Industrial Relations to take all
steps necessary to ensure that the State collects,
maintains and studies the relevant data and third
party research upon which to make informed policy
decisions on this matter in the future.
Analysis Prepared by: Mark Rakich / INS. / (916) 319-2086
FN: 0005999