Amended in Senate August 28, 2013

Amended in Senate August 13, 2013

Amended in Assembly April 25, 2013

Amended in Assembly April 10, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1309

Introduced by Assembly Member Perea

(Principal coauthor: Senator Lieu)

(Coauthors: Assembly Members Buchanan, Conway, Hagman, and Hall)

(Coauthors: Senators Correa, Hill, Huff, Lara, and Wyland)

February 22, 2013

An act to amend begin delete Sections end delete begin insert Section end insert 3600.5 begin delete and 5500.6 end delete of the Labor Code, relating to workers’ compensation.

LEGISLATIVE COUNSEL’S DIGEST

AB 1309, as amended, Perea. Workers’ compensation: professional athletes.

Existing workers’ compensation law requires employers to secure the payment of workers’ compensation, including medical treatment, for injuries incurred by their employees that arise out of, or in the course of, employment.

Existing law provides that an injury may be either “specific,” occurring as the result of one incident or exposure that causes disability or need for medical treatment, or “cumulative,” occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.

Existing law provides that an employee who has been hired outside of this state and his or her employer are exempt from these provisions while the employee is temporarily within this state doing work for his or her employer if the employer has furnished workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of a state other than California, as specified.

This bill would exempt an employee hired outside of this state begin delete , his or her dependents, end delete and his or her employer from the occupational disease and cumulative injury provisions of this state’s workers’ compensation laws if (1) the employee is a professional athlete, defined, for purposes of these provisions, to include an athlete who is employed at the minor or major league level in the sport of baseball, basketball, football, begin insert ice end insert hockey, or soccer, (2) that professional athlete is temporarily within this state doing work for his or her employer, and (3) the employer has furnished workers’ compensation insurance under the laws of the state other than California that covers the professional athlete’s employment while in this state, except as specified. This bill would deem a professional athlete to be temporarily within the state doing work for his or her employer if, during the 365 consecutive days immediately preceding the professional athlete’s last day of work for the employer within the state, the professional athlete performs less than 20% of his or her duty days, as defined, in the state. The exemption would not apply to begin delete an employer of end delete a professional athlete begin insert and his or her employer end insert if the professional athlete has, over the course of his or her career, begin delete been employed end delete begin insert worked end insert for 2 begin insert or more end insert seasons begin delete or longer by end delete begin insert for end insert a begin delete California end delete begin insert California-based end insert team or teams begin insert , as defined, end insert or begin delete performed end delete begin insert worked end insert 20% or more of his or her duty days in California begin insert or for a California-based team, and, over the course of his or her professional career, worked for fewer than 7 seasons for any team other than a California-based team end insert . begin delete The bill would make an employer liable for occupational disease or cumulative injury to a professional athlete only if the employer employed the professional athlete within the last 7 nonconsecutive years of the professional athlete’s occupational exposure to the hazards of the occupational disease or cumulative injury. end delete The bill would also state that it is the intent of the Legislature that the decision of the Workers’ Compensation Appeals Board in Wesley Carroll v. Cincinnati Bengals, et al. (2013) 78 Cal.Comp.Cases ____ (ADJ2295331) (WCAB En Banc) be limited to professional athletes, and would include other specified statements of legislative intent.

The bill would provide that these changes apply to all pending claims for benefits filed on or after begin delete January 1, 2014, end delete begin insert September 15, 2013, end insert as specified.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3600.5 of the Labor Code is amended to
read:

3600.5.  

(a) If an employee who has been hired or is regularly
begin delete employed end delete begin insert working end insert in the state receives personal injury by accident
arising out of and in the course of employment outside of this state,
he or she, or his or her dependents, in the case of his or her death,
shall be entitled to compensation according to the law of this state.

(b) (1)  begin delete Except as provided in subdivision (c), an end delete begin insert An end insert employee
who has been hired outside of this state and his or her employer
shall be exempted from the provisions of this division while the
employee is temporarily within this state doing work for his or her
employer if the employer has furnished workers’ compensation
insurance coverage under the workers’ compensation insurance
or similar laws of a state other than California, so as to cover the
employee’s begin delete employment end delete begin insert work end insert while in this state if both of the
following apply:

(A) The extraterritorial provisions of this division are recognized
in the other state.

(B) The employers and employees who are covered in this state
are likewise exempted from the application of the workers’
compensation insurance or similar laws of the other state.

(2) In any case in which paragraph (1) is begin delete applicable, end delete begin insert satisfied, end insert
the benefits under the workers’ compensation insurance or similar
laws of the other state, and other remedies under those laws, shall
be the exclusive remedy against the employer for any injury,
whether resulting in death or not, received by the employee while
working for the employer in this state.

(c) (1) With respect to an occupational disease or cumulative
injury, a professional athlete who has been hired outside of this
state and his or her begin delete dependents and his or her end delete employer shall be
exempted from the provisions of this division while the
professional athlete is temporarily within this state doing work for
his or her employer if both of the following begin delete apply: end delete begin insert are satisfied: end insert

(A) The employer has furnished workers’ compensation
insurance coverage or its equivalent under the laws of a state other
than California.

(B) The employer’s workers’ compensation insurance or its
equivalent covers the professional athlete’s begin delete employment end delete begin insert work end insert
while in this state.

(2)  begin delete If the conditions described in end delete begin insert In any case in which end insert paragraph
(1) begin delete are end delete begin insert is end insert satisfied, the benefits under the begin insert workers’ compensation
insurance or similar end insert laws of the other state, and other remedies
under those laws, begin delete are end delete begin insert shall be end insert the exclusive remedy against the
employer for any occupational disease or cumulative injury,
whether resulting in death or not, received by the employee while
working for the employer in this begin delete state, except as described in
subdivision (d) end delete begin insert state end insert .

(3)  begin delete For purposes of this subdivision, a end delete begin insert A end insert professional athlete begin delete is end delete
begin insert shall be deemed, for purposes of this subdivision, to be end insert temporarily
within this state doing work for his or her employer if, during the
365 consecutive days immediately preceding the professional
athlete’s last day of work for the employer within the state, the
professional athlete performs less than 20 percent of his or her
duty days in begin delete the State of end delete California begin insert during that 365-day period in end insert
begin insert California end insert . begin delete For the purposes of this section, a “duty day” means
a day in which any services are performed by an employee under
the direction and control of his or her employer pursuant to a player
contract. end delete

begin delete

(4) The term “professional athlete” for purposes of this
subdivision and subdivision (d) means an athlete who is employed
at either a minor or major league level in the sport of baseball,
basketball, football, hockey, or soccer.

(d) (1) Subdivision (c) does not apply to any employer of a
professional athlete if either of the following is applicable:

(A) The professional athlete has, over the course of his or her
professional career, been employed for two or more seasons by a
California team or teams.

(B) The professional athlete has, over the course of his or her
career, performed 20 percent or more of his or her duty days in
California. The percentage of a career performing duty days in
California shall be determined solely by taking the number of duty
days the professional athlete was employed by a California team
or teams, plus the number of duty days the professional athlete
was employed as a professional athlete in California by a
non-California team or teams, and dividing that number by the
total number of duty days the professional athlete was employed
anywhere as a professional athlete.

(2) For the purposes of this subdivision, a California team is
one that plays a majority of its home games in California.

(3) For purposes of this subdivision, a season is defined as the
total number of days from the date of the first preseason game by
the team for whom the professional athlete played through the date
of the last game the professional team played during his or her
contract year.

(4) If either of the conditions specified in paragraph (1) is
applicable, the benefits under the laws of California shall be the
exclusive remedy against the employer subject to this division
pursuant to Section 5500.5 for any occupational disease or
cumulative injury claim brought under the laws of the State of
California against the employer, whether resulting in death or not,
received by the employee while working for the employer in this
state.

(5) An employer that would be exempted from the provisions
of this division by subdivision (c), but for this subdivision, is
exempt from Article 4 (commencing with Section 3550) of Chapter
2 of this division.

(6) The amendments made to this section by the act adding this
paragraph apply to all claims for benefits pursuant to this division
filed on or after January 1, 2014, but do not apply to a case in
which a final adjudication has been rendered prior to that date.
The amendments made to this section by the act adding this
paragraph shall not constitute good cause to reopen any final
decision, order, or award.

end delete begin insert

(d) (1) With respect to an occupational disease or cumulative
injury, a professional athlete and his or her employer shall be
exempt from this division when all of the professional athlete’s
employers in his or her last year of work as a professional athlete
are exempt from this division pursuant to subdivision (c) or any
other law, unless both of the following conditions are satisfied:

end insert begin insert

(A) The professional athlete has, over the course of his or her
professional athletic career, worked for two or more seasons for
a California-based team or teams, or the professional athlete has,
over the course of his or her professional athletic career, worked
20 percent or more of his or her duty days either in California or
for a California-based team. The percentage of a professional
athletic career worked either within California or for a
California-based team shall be determined solely by taking the
number of duty days the professional athlete worked for a
California-based team or teams, plus the number of duty days the
professional athlete worked as a professional athlete in California
for any team other than a California-based team, and dividing
that number by the total number of duty days the professional
athlete was employed anywhere as a professional athlete.

end insert begin insert

(B) The professional athlete has, over the course of his or her
professional athletic career, worked for fewer than seven seasons
for any team or teams other than a California-based team or teams
as defined in this section.

end insert begin insert

(2) When subparagraphs (A) and (B) of paragraph (1) are both
satisfied, liability for the professional athlete’s occupational
disease or cumulative injury shall be determined in accordance
with Section 5500.5.

end insert begin insert

(e) An employer of professional athletes, other than a
California-based team, shall be exempt from Article 4 (commencing
with Section 3550) of Chapter 2, and subdivisions (a) to (c),
inclusive, of Section 5401.

end insert begin delete

(e)

end delete

begin insert (f) end insert  For purposes of this section, a certificate from the duly
authorized officer of the appeals board or similar department of
another state certifying that the employer of the other state is
insured in that state and has provided extraterritorial coverage
insuring his or her employees while working within this state shall
be prima facie evidence that the employer carries workers’
compensation insurance.

begin insert

(g) For purposes of this section, the following definitions apply:

end insert begin insert

(1) The term “professional athlete” means an athlete who is
employed at either a minor or major league level in the sport of
baseball, basketball, football, ice hockey, or soccer.

end insert begin insert

(2) The term “California-based team” means a team that plays
a majority of its home games in California.

end insert begin insert

(3) The term “duty day” means any day during the course of a
season the professional athlete works under the direction and
control of his or her employer pursuant to a player contract.

end insert begin insert

(4) The term “season” means the period from the date of the
first preseason team activity for that contract year, through the
date of the last game the professional athlete’s team played during
the same contract year.

end insert begin insert

(h) The amendments made to this section by the act adding this
subdivision apply to all claims for benefits pursuant to this division
filed on or after September 15, 2013, but do not apply to a case in
which a final adjudication has been rendered prior to January 1,
2014. The amendments made to this section by the act adding this
subdivision shall not constitute good cause to reopen any final
decision, order, or award.

end insert begin insert

(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of this section that can
be given effect without the invalid provision or application, and
to this end the provisions of this section are severable.

end insert

begin delete

SEC. 2.  

Section 5500.6 of the Labor Code is amended to read:

5500.6.  

(a) Liability for occupational disease or cumulative
injury which results from exposure solely during employment as
an employee, as defined in subdivision (d) of Section 3351, shall
be limited to those employers in whose employment the employee
was exposed to the hazards of the occupational disease or
cumulative injury during the last day on which the employee was
employed in an occupation exposing the employee to the hazards
of the disease or injury. In the event that none of the employers of
the last day of hazardous employment is insured for workers’
compensation liability, that liability, shall be imposed upon the
last employer exposing the employee to the hazards of the
occupational disease or cumulative injury who has secured
workers’ compensation insurance coverage or an approved
alternative thereto. If, based upon all the evidence presented, the
appeals board or the workers’ compensation judge finds the
existence of cumulative injury or occupational disease, liability
for the cumulative injury or occupational disease shall not be
apportioned to prior employers. However, in determining liability,
evidence of disability due to specific injury, disability due to
non-work-related causes, or disability previously compensated for
by way of a findings and award or order approving compromise
and release, or a voluntary payment of disability, may be admissible
for purposes of apportionment.

(b) (1) An employer shall be liable for occupational disease or
cumulative injury to a professional athlete, as defined in Section
3600.5, only if the employer employed the professional athlete
within the last seven nonconsecutive years of the professional
athlete’s occupational exposure to the hazards of the occupational
disease or cumulative injury. If more than one employer that is
subject to this division employed the professional athlete within
the last five years of injurious exposure, liability shall be limited
to employers as provided by Section 5500.5.

(2) The amendments made to this section by the act adding this
paragraph shall apply to all claims for benefits pursuant to this
division filed on or after January 1, 2014. The amendments made
to this section by the act adding this paragraph shall not constitute
good cause to reopen any final decision, order, or award.

end delete

begin delete SEC. 3. end delete
begin insert SEC. 2. end insert   

It is the intent of the Legislature that the changes made
to law by this act shall only affect begin delete covered end delete begin insert specified end insert professional
athletes and begin delete covered end delete employers of begin insert specified end insert professional athletes.
The changes made to law by this act shall not affect any other
employer or employee in the State of California.

begin delete SEC. 4. end delete
begin insert SEC. 3. end insert   

It is the intent of the Legislature that the changes made
to law by this act shall have no impact or alter in any way the
decision of the court in Bowen v. Workers’ Comp. Appeals Bd.
(1999) 73 Cal.App.4th 15.

begin delete SEC. 5. end delete
begin insert SEC. 4. end insert   

It is the intent of the Legislature that the decision of
the Workers’ Compensation Appeals Board in Wesley Carroll v.
Cincinnati Bengals, et al. (2013) 78 Cal.Comp.Cases ____
(ADJ2295331) (WCAB En Banc) be limited to professional
athletes, as defined in this act.

begin delete SEC. 6. end delete
begin insert SEC. 5. end insert   

It is the intent of the Legislature that the changes made
to law by this act have no impact or alter in any way the decision
of the Workers’ Compensation Appeals Board in Dennis McKinley
v. Arizona Cardinals et al. (2013) 78 CCC 23 (ADJ7460656).