BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: April 9, 2014 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: AB 1035
Author: Perez
As Introduced/Amended: March 27, 2014
SUBJECT
Workers' compensation: firefighters and peace officers.
KEY ISSUE
Should the Legislature extend the timelines that limit a
dependent from filing for workers' compensation death benefits
if the deceased worker died of Cancer, Tuberculosis,
Methicillin-Resistant Staphylococcus aureus (MRSA) skin
infections, or a bloodborne infectious disease?
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 creates a series of disputable presumptions of an
occupational injury for peace and safety officers for the
purposes of the workers' compensation system. These
presumptions include:
Heart disease;
Hernias;
Pneumonia;
Cancer;
Meningitis;
Tuberculosis;
Methicillin-resistant Staphylococcus aureus (MRSA) skin
infections; and
Bloodborne infectious disease.
The compensation awarded for these injuries must include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by workers compensation law. These
presumptions tend to run for 5 to 10 years commencing on their
last day of employment, depending on the injury and the peace
officer classification involved. (Labor Code §§3212 to 3213.2)
Existing law provides that the presumptions listed above are
disputable and may be controverted by evidence. However, unless
controverted, the Workers' Compensation Appeals Board must find
is accordance with the presumption. (Labor Code §§3212 to
3213.2)
Existing law provides for the payment of a workers' compensation
indemnity death benefit. The amount of the benefit is
determined by the date of injury, the number dependents, and if
those dependents are partially dependent or wholly dependent on
the deceased worker.
(Labor Code §§ 4700 to 4709)
Existing law provides that no person is a dependent of any
deceased employee unless in good faith a member of the family or
household of the employee, or unless the person bears to the
employee the relation of 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, nephew or niece. (Labor Code §3503)
Existing law requires, with certain exceptions , that the
collection of workers' compensation death benefits must be
commenced one year from:
1) The date of death where death occurs within one year
from date of injury; or
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Senate Committee on Labor and Industrial Relations
2) The date of last furnishing of any benefits where death
occurs more than one year from the date of injury; or
3) The date of death, where death occurs more than one year
after the date of injury and compensation benefits have
been furnished.
No such proceedings may be commenced more than one year after
the date of death, nor more than 240 weeks from the date of
injury.
(Labor Code §5405)
The exceptions to the above timelines are as follows:
a) In the case of the death of an asbestos worker or
firefighter from asbestosis, the period within which
proceedings may be commenced for the collection of workers'
compensation death benefits is one year from the date of
death;
b) In the case of the death of a healthcare worker,
firefighter, peace officer, or correctional officer from
HIV-related disease, the period within which proceedings
may be commenced for the collection of workers'
compensation death benefits is one year from the date of
death, provided they meet certain requirements.
(Labor Code §§ 5406.5 and 5406.6)
Existing law defines the "date of injury", in cases of
occupational diseases or cumulative injuries is that date upon
which the employee first suffered disability therefrom and
either knew, or in the exercise of reasonable diligence should
have known , that such disability was caused by his present or
prior employment.
(Labor Code §5412)
This bill would provide an extension for dependents of deceased
firefighters and peace officers to file for workers'
compensation death benefits who died any of the following:
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Senate Committee on Labor and Industrial Relations
Cancer;
Tuberculosis;
Methicillin-resistant Staphylococcus aureus (MRSA) skin
infections; or
Bloodborne infectious disease.
This extension is for up to 420 weeks from the date of injury,
or slightly more than 8 years , but in no case more than one year
from the date of death.
This bill requires that the above-discussed extension would
sunset on January 1, 2019.
This bill would also make findings and declarations on the
sacrifices made by firefighters and peace officers and the need
for the grieving families of firefighters and peace officers to
have sufficient time to file for workers' compensation death
benefits.
This bill further declares the need for the Administrative
Director of the Division of Workers' Compensation (DWC) to study
mortality rates prior to extending or allowing the extension to
sunset.
COMMENTS
1. A Brief Discussion on Presumptions and Death Benefits:
Presumptions for peace officers and firefighters have been a
part of workers' compensation law since 1917. While their
scope has grown, the fundamental idea behind each and every
presumption remains the same: these are injuries that are
intuitively likely to be job related, and therefore
occupational injuries compensable in the workers' compensation
system, but are difficult for the employee to prove. A good
example of this is the "heart trouble" presumption, which was
created in 1939: while many individuals suffer from heart
ailments for a variety of different reasons, the jobs we asked
firefighters and peace officers to fulfill are very stressful
and take a toll on their heart. Therefore, for these
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Senate Committee on Labor and Industrial Relations
individuals, the Legislative granted a presumption that a
firefighter or peace officer's "heart trouble" is
occupational.
While the number of presumptions has grown in recent years,
the time limits on a dependent to collect workers'
compensation death benefits has largely remained the same
since 1980: 240 weeks of the initial injury, or about 4
years, and no more than one year from the date of injury. The
only two exceptions to this timeline in current law are for
HIV-related diseases and asbestosis, as was discussed above.
AB 1035 would nearly double the timelines for dependents of
firefighters and peace officers to file for workers'
compensation death benefits if the firefighter or peace
officer died of cancer, tuberculosis, MRSA, or a bloodborne
pathogen.
2. A Brief Discussion on TB, MRSA & Bloodborne Pathogens :
As noted above, AB 1035 covers dependents of firefighters or
peace offices who died of cancer, tuberculosis, MRSA skin
infections, or bloodborne skin infections. However, with the
exception of cancer, it would be an unlikely scenario where
the date of injury and death would fall outside of the 240
week period (60 months). For example, the treatment regimen
suggested by the Center for Disease Control (CDC) for
antibiotic-resistant tuberculosis is 6 months to 2 years. The
success rate of these treatments is quite high, and the
mortality rate of tuberculosis has fallen consistently since
1990 according to CDC data.
Similarly, the incubation period for MRSA skin infections is 8
minutes to 10 hours, with clinical signs manifesting in 4 to
10 days. Bloodborne pathogens, on the other hand, vary
significantly. However, the rates of infection on the
relevant bloodborne pathogens that are not covered by existing
law (Hepatitis B & C) have declined significantly since 2000,
suggesting fatalities by bloodborne pathogens would also be
somewhat rare, though possibly outside of the 240 week period.
In short, the inclusion of tuberculosis, MRSA, and bloodborne
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pathogens in AB 1035 is unlikely to lead to significant
changes in workers' compensation utilization.
3. A Brief Discussion on Firefighters, Peace Officers, Cancer and
Cost:
Prior to 2013, several epidemiological studies have suggested
that firefighters have higher incidences of cancer due to
their exposure to contaminants. This is particularly true of
bladder cancer, pancreatic cancer, and lung cancer. However,
the sample sizes of the studies known to Committee Staff were
relatively small.
In late 2013, the National Institute on Occupational Safety
and Health (NIOSH) released a study of cancer incidence in
firefighters, looking at more than 30,000 firefighters, making
it one of the largest studies in this area. The sample
included firefighters from San Francisco, providing direct
applicability from the study to California's workers. The
NIOSH study found elevated cancer incidence (6-12% increase)
and mortality (10-18% increase) when compared to the general
population. This included digestive (10-25% increase in
incidence; 18-34% increase in mortality) and respiratory
(8-24% increase in incidence; 4-17% increase in mortality)
cancers.
On the topic of the cost, the Commission on Health and Safety
and Workers' Compensation (CHSWC) recently heard a
presentation that sought to quantify the costs of extending
the timelines for collection of workers' compensation death
benefits for firefighters and peace officers. While the
report is currently in draft form, the current rough estimate
on the cost of extending the timeline for filing for workers'
compensation death benefits is that it will impact
approximately 20 firefighters and peace officers and cost
between $4.25 and $5 million per year . While the estimate was
based on a timeline extension to 480 weeks (10 years), rather
than 420 weeks, the estimate remains a likely range.
4. Proponent Arguments :
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Proponents argue that existing law is not meeting the needs of
California's firefighters and peace officers. Proponents note
that if a firefighter or peace officer dies of an occupational
disease more than five years after being diagnosed with the
disease, his or her family members are unable to claim a death
benefit. With occupational injuries such as cancer, the
timeframe between when the injury was discovered and when the
worker succumbs to the injury may be longer than 5 years. In
these cases, proponents argue that the families of
firefighters and peace officers should not be denied their
right to workers' compensation death benefits.
5. Opponent Arguments :
Opponents argue that AB 1035 will increase costs on local
governments and counties at a time when budgets are limited
and the full impact of the 2012 Workers' Compensation reform
is unknown. Opponents also argue that AB 1035 is being
considered at the same time as other bills which add to the
number of peace officers who qualify for existing
presumptions, and that these bills could increase the fiscal
impacts of AB 1035. Opponents also note that the recent NIOSH
study only noted increases in some cancers, while the existing
workers' compensation presumption covers all cancers.
6. Prior Legislation :
AB 2451 (Perez) of 2012 would have allowed dependents of a
firefighter or peace officer who dies of certain occupational
ailments to file for workers' compensation death 480 weeks
from the date of injury. AB 2451 was vetoed by Governor
Brown. In his veto message, Governor Brown cited the fiscal
impacts and the lack of data, and also noted the following:
"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
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based decision on this question in the future."
It is currently unknown if the recent NIOSH study addresses
the Governor's concerns.
SUPPORT
Peace Officers Research Association of California (Co-Sponsor)
The Association for Los Angeles Deputy Sheriffs (Co-Sponsor)
The California Professional Firefighters (Co-Sponsor)
The Los Angeles Police Protective League (Co-Sponsor)
The Los Angeles Probation Officers' Union, AFSME, Local 685
(Co-Sponsor)
The Riverside Sheriffs' Association (Co-Sponsor)
California Applicants' Attorneys Association
Californian Labor Federation, AFL-CIO
Los Angeles County Professional Peace Officers Association
OPPOSITION
California Association of Joint Powers Authorities
California Coalition of on Workers' Compensation
California State Association of Counties
CSAC Excess Insurance Agency
League of California Cities
Rural County Representatives of California
Hearing Date: April 9, 2014 AB 1035
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Senate Committee on Labor and Industrial Relations