SENATE BILL REPORT

SB 5354

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Background: Survivors of employees who die as a result of a work related injury or occupational disease are eligible to receive benefits under the state Industrial Insurance Program. The determination of whether the death occurred as a result of an injury sustained in the course of employment is made by the Department of Labor and Industries (L&I) and is based on relevant statutory and case law. If L&I determines the death was work related, the claim will be allowed and the surviving spouse will receive a monthly benefit ranging from 60 to 70 percent of the wages of the deceased worker, which is discontinued upon remarriage.

The survivors of employees covered by the Law Enforcement Officers and Fire Fighters Retirement System (LEOFF) and Washington State Patrol Retirement System (WSPRS) are also eligible for benefits under the respective retirement plans when a member dies as a result of a work related injury. L&I's determination about whether the death was caused by a work related injury under industrial insurance is used to establish eligibility for death benefits under the LEOFF 2 and WSPRS plans.

Surviving spouses of employees who meet the federal definition of public safety officers, including some members of LEOFF and WSPRS are eligible under the federal Public Safety Officers Benefit Act of 1976 (PSOB) for a death benefit when the public safety officer died in the line of duty.

An occupational disease is defined in statute as a disease or infection that arises naturally and proximately out of employment. Certain health conditions, when suffered by firefighters, are presumed to be occupational diseases for industrial insurance purposes. These conditions include respiratory disease, heart problems experienced within certain time frames, cancer, and infectious diseases. The presumption of occupational disease may be rebutted by a preponderance of the evidence.

Summary of Bill (Recommended Substitute): A presumption is created for law enforcement officers covered by LEOFF or members of WSPRS that any heart problems or a stroke experienced within 24 hours of certain on-duty stressful or strenuous activities is considered a work-related injury for industrial insurance purposes. The presumption can be overcome by a preponderance of the evidence, which can include use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or non-employment activities. Stressful or strenuous activities which can trigger the presumption include training exercises; law enforcement, fire suppression, and rescue activities; hazardous material response; prison security; and other disaster relief or emergency response activities.

The presumption does not apply to law enforcement officers who are regular users of tobacco or have a history of tobacco use.

For firefighters, it is presumed that a stroke is an occupational disease if it experienced within 72 hours of exposure to smoke, fumes, or toxic substances, or within 24 hours of strenuous physical exertion due to firefighting activities.

EFFECT OF CHANGES MADE BY LABOR, COMMERCE & CONSUMER PROTECTION COMMITTEE (Recommended Substitute): Generally, the proposed substitute re-drafts the language so that the law enforcement presumption is similar to the existing presumption in state law for firefighters rather than similar to federal law.

The proposed substitute also extends the presumption for law enforcement officers to cover heart problems rather than heart attacks, and applies the presumption regardless of whether the law enforcement officer dies as a result of the heart problems or stroke.

The substitute lists evidence that can be used to rebut the presumption use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or non-employment activities, and provides that the presumption does not apply to law enforcement officers who are regular users of tobacco, or have a history of tobacco use, as defined by L&I using medical research.

The substitute also provides that the legislation is to be known and cited as the Brian Walsh Act.

Staff Summary of Public Testimony on Original Bill: PRO: Police officers protect the public, and there are bad people out there. When a family makes that sacrifice, there is no reason they should not get survivor benefits. A nearly identical presumption exists for firefighters and should be extended to law enforcement officers. The language would make state law consistent with federal provisions and protections. This bill supports the family of fallen officers and firefighters. A widow shouldn't have to fight for a benefit. Other states and the federal law government have similar presumptions.

CON: This is a sensitive and emotional issue; however, laws relating presumptions for occupational disease need to be clear and supported by scientific evidence. Those injured and killed on duty should clearly be covered; however, there are many factors that dictate one's predisposition to a heart attack or stroke that are not work related. The firefighter section adds stroke and there isn't clear scientific evidence that higher level stroke occurs in this occupation to justify the presumption. The language in the bill is unclear and contains no clear parameters. This change would add cost to the workers compensation program, particularly for the state and local governments.

Persons Testifying: PRO: Kelly Fox, WSCFF; Davor Gjurasic, WSP; Brian Wurtz, WACOPS; Renee Maher, COMPAS; Vanessa Walsh; Steve Nelson, LEOFF Plan 2 Board; Chris Martin, Federal Way P.D.

CON: Kathleen Collins, Washington Self Insurer's Association; Candice Bock, AWC; Scott Merriman, Association of Washington Counties.