New Bills, Same Dangers

Political machinations create the complexity we know as workers' compensation law.

California is the prime example, with several bills moving around the legislature that bestow special treatment to certain classes of workers.

One bill, Assembly Bill 1035 by House Speaker John A. Pérez, D-Los Angeles, would allow dependents to file claims for deaths caused by cancer, tuberculosis, methicillin-resistant Staphylococcus aureus infections and other bloodborne infectious diseases up to 420 weeks from the date the disease is diagnosed.

Similar bills in the past had made it through the legislature but Gov. Jerry Brown had vetoed them ostensibly because he was waiting for reports from the National Institute for Occupational Safety and Health and the California Commission on Health Safety and Workers' Compensation.

AB 1373, which passed in 2013 and AB 2451, which passed in 2012 differed in that both extended the limitations period to 480 weeks.

And the new bill includes a sunset provision that would allow the governor and Legislature to revisit the appropriateness of the new time frame in five years.

Supporters say AB 1035 is necessary because with advances in medical science, safety officers who develop cancer and other diseases through their employment are living longer.

The emotional appeal is that these brave public servants fight for their lives, only to succumb to the disease after the death benefits limitation period expires so dependents can not collect the benefits.

Of course that same argument could be made for any worker who contracts the same diseases covered in AB 1035 - but they're not of the class of employees with the lobbying power before the legislature.

The NIOSH study published last year found that firefighters are at an increased risk for developing certain types of cancer.

A report submitted to CHSWC in March estimated extending the deadline to 480 weeks (as proposed in the original prior two bills) would cost the state and local governments about $4.75 million.

While the usual arguments are being made about cost increases and necessity for the bill, the real concern in my mind is unintended consequences, particularly if a couple of other bills pass.

The Assembly Insurance Committee voted 8-3 to pass AB 2052 on April 2, which would extend the presumption that heart trouble, cancer, hernias and other conditions are compensable to anyone who meets the statutory definition of “peace officer” under six sections of the Penal Code. The bill would apply to school district and college police, railroad and transit safety officers, park rangers, welfare fraud investigators, utility security officers and coroners.

SB 1234, Sen. Marty Block, D-San Diego, would authorize one year of salary continuation benefits under Labor Code Section 4850 for the same safety workers who would be made eligible for the presumption by AB 2052.

After the Senate Labor and Industrial Relations Committee had unanimously passed SB 1234 by Sen. Marty Block, D-San Diego, on March 26 the bill was placed on the Senate Appropriations Committee suspense file Monday, a holding spot for measures that are expected to cost the state at least $50,000.

And AB 2378 by Fresno Democrat Henry Perea, chairman of the Assembly Insurance Committee, would declare that any benefits paid under Labor Code Section 4850 do not count against the two-year cap for collecting temporary disability benefits.

Unrelated to public safety officers, but nevertheless an example of the political pressure put on workers' compensation, the nurse's presumption of injury is back.

Berkeley Democrat Nancy Skinner has amended Assembly Bill 2616 to propose language that is identical to a measure she introduced in 2012 and also similar to what she proposed in 2011that would create a rebuttable presumption that methicillin-resistant Staphylococcus aureus is an occupational injury for hospital workers who provide direct patient care.

An MRSA infection that develops while a person is working at an acute care hospital or that develops within 60 days following termination would be presumed to arise out of and in the course of employment under the bill. The presumption could be rebutted by other evidence.

I've been critical of the nurse's presumption in the past and I still don't believe it is necessary.

Public safety presumptions have been a part of the law for a very long time, and the extension of the death benefit statute of limitations probably won't have that big of an impact overall on the operational expenses of public safety departments.

But, as I have said in the past, "in the world of litigation, the limits of applying a presumption are restricted only by the imagination and creativity of the lawyers articulating an interpretation that may, or may not, have been considered by the legislature."

THAT's why we end up with unintended consequences!