BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 664
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          Date of Hearing:   April 22, 2009

                           ASSEMBLY COMMITTEE ON INSURANCE
                                   Joe Coto, Chair
                 AB 664 (Skinner) - As Introduced:  February 25, 2009
           
          SUBJECT  :   Workers' compensation: presumptions

           SUMMARY  :  Provides that back or neck injuries, MRSA, and other  
          blood-borne infectious diseases are presumed to be job related  
          if suffered or contracted by a hospital employee.  Specifically,  
           this bill  :  

          1)Specifies that the term "injury" as used in the workers'  
            compensation law with respect to a hospital employee shall  
            include blood-borne infectious disease, neck or back  
            impairment, and methicillin-resistant Staphylococcus aureus  
            (MRSA) that develops or manifests itself during a person's  
            employment at a hospital.

          2)Provides that these diseases or conditions shall be presumed  
            to arise out of and in the course of employment.

          3)Allows the employer to dispute the presumption, requiring the  
            employer to prove by evidence that the disease or condition is  
            NOT related to employment.

          4)Extends the period during which a hospital employee may rely  
            on this presumption beyond separation from hospital employment  
            for three months based on a formula of every year employed at  
            the hospital, but in no case longer than 5 years.

           EXISTING LAW  :

          1)Establishes a comprehensive system of workers' compensation  
            benefits for injuries, including diseases, that arise out of  
            and in the course of employment.  The benefits include full  
            medical benefits to treat the injury or condition,  
            indemnification for temporary and permanent disability, death  
            benefits, among other benefits.

          2)Requires in most cases that the employee establish that the  
            injury or condition underlying the claim arose out of and in  
            the course of employment.









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          3)Provides safety officers (specified police, sheriff,  
            firefighter employees) with a presumption that certain  
            injuries or conditions are related to employment.  These  
            conditions or injuries are more extensive than, but include,  
            the three conditions included in this bill.

           FISCAL EFFECT  :   Undetermined but potentially significant costs  
          to the State's workers' compensation program.

           COMMENTS  :   

           1)Purpose  .  The author states that this bill is needed for the  
            following reasons:

               "Registered nurses and hospital workers by the nature of  
               their work, which involves ill patients and medical  
               equipment, are in constant danger of being exposed to a  
               variety of illnesses and becoming injured by lifting and  
               mobilizing patients and by medical equipment.  Because of  
               the physical nature of patient care, California's aging  
               nursing workforce, combined with rising patient acuity and  
               obesity, more work related injuries to the neck and back  
               and higher levels of exposure to infectious diseases are  
               occurring.

               According to the 2007 Bureau of Labor Statistics,  
               healthcare workers, 95% women, lead the nation in the  
               highest musculoskeletal (MSD) injury rates. As a whole, the  
               Healthcare sector suffered 66,060 MSDs. In addition, the  
               nursing sector ranks 3rd with the number of work days  
               missed from illness and injury.  In 2002, the University of  
               California's 5 medical centers had over 700 such injuries  
               with a cost to the State of $11 million.  

               Additionally, blood-borne diseases and  
               methicillin-resistant Staphylococcus aureus (MRSA) are  
               contact work related hazards for hospital employees.   
               Particularly, MRSA is increasingly infecting hospital  
               workers and their patients.  MRSA is one of the most  
               virulent types of antibiotic-resistant staph infections.   
               Although infection control measures help to stop the spread  
               of MRSA and other blood-borne diseases they do not  
               eliminate the job related threat of contracting MRSA or  
               other blood- borne diseases completely." 









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           2)Presumption of compensability  .  Under current law, the only  
            type of employees (subject to two exceptions discussed below)  
            who receive the benefit of presumptions that injuries or  
            conditions are job-related are police and firefighters -  
            public safety employees.  This bill would extend this special  
            benefit to private sector employees, and to non-safety  
            employees.  The bill is therefore extending the concept of  
            presumptions in two novel respects.

          The two exceptions to the "only public employees" and "only  
            safety officers" rules for presumptions involve somewhat  
            unique circumstances.  Last year, a small group of  
            firefighters who happen to be employed by a private contractor  
            due to a quirk in federal law were granted the same status  
            with respect to presumptions afforded public employee  
            firefighters.  (SB 1271 (Cedillo) of 2008, Statutes 2008,  
            Chapter 747.)  The other exception is for public employee  
            lifeguards, and that presumption is limited to skin cancer.   
            Cancer was the initial condition where the notion of  
            presumptions was applied.  The policy is that it is a  
            condition that intuitively is job related, but due to the long  
            latency period and uncertain medical causation issues,  
            difficult for the employee to prove.

           3)Support  .  Supporters point to the statistics surrounding  
            injuries to nurses and other hospital workers, including back  
            injuries and the consequences of disease due to needle pricks,  
            and argue that these employees are providing critical services  
            to their communities and deserve the protection that a  
            presumption of compensability would afford them.

           4)Are claims being denied for these injuries  ?  A presumption has  
            historically been adopted when employees have had difficulty  
            proving that the injury or condition at issue is job-related,  
            while at the same time it is intuitively logical that it is,  
            in fact, job-related.  The Committee has not received  
            information indicating that hospital workers suffering from  
            the conditions or injuries that the bill would presume to be  
            job-related have had difficulty in the workers' compensation  
            system establishing that the injuries or conditions were in  
            fact job-related.

           5)Opposition  .  The opponents point out that the bill applies to  
            all hospital employees, and argue that there is no rationale  
            to extend the concept of presumptions to employees who are not  








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            in the traditional group - public safety officers - who have  
            received this special benefit due to the special dangers of  
            the work they do.  Because of the unique role that public  
            safety officers play in our society, they have historically  
            received several different and unique benefits, including  
            enhanced retirement rules, special disability retirement  
            rules, enhanced temporary disability rules, and presumptions  
            of compensability.  While these enhanced benefits may be  
            appropriate for public safety employees, it does not follow  
            that these rules should be expanded to other classes of  
            employee.  

          Opponents argue that there is no evidence that the normal rules  
            governing how injuries or conditions are proven to be  
            job-related are not working properly with respect to the  
            employees and the conditions being addressed by the bill.  

           6)Statute of Limitations issue  .  The bill provides that the  
            presumptions established by the bill apply for a period  
            subsequent to the employee leaving hospital employment.  It  
            adopts a formula for calculating the period of 3 months for  
            each year of service.  This has been the period applicable for  
            other presumptions for other employees.  However, the MRSA  
            presumption enacted last Session adopted a much shorter time  
            period, in recognition of the fact that MRSA has a short  
            incubation period.  The bill should be amended to establish a  
            90 post-employment period for MRSA consistent with Labor Code  
            Section 3212.8, subdivision (b)(3).

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Applicants' Attorneys Association (CAAA)
          California Nurses Association/National Nurses Organizing  
          Committee (Sponsor)
          California Professional Firefighters
          California State Employees Association (CSEA)
          San Bernardino Public Employees Association 
          United Nurses Associations of California/Union of Health Care  
          Professionals (UNAC/UHCP)
           
          Opposition 
           
          Alpha Fund








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          Alvarado Hospital
          American Insurance Association (AIA)
          Association of California Insurance Companies (ACIC)
          Banner Lassen Medical Center
          California Association of Joint Powers Authorities (CAJPA)
          California Chamber of Commerce
          California Coalition on Workers' Compensation (CCWC)
          California Hospital Association
          California Special Districts Association (CSDA)
          California State Association of Counties (CSAC)
          Community Memorial Health System 
          Cottage Health System
          CSAC-Excess Insurance Authority (CSAC-EIA)
          Encino Hospital Medical Center
          Garden Grove Hospital and Medical Center
          Huntington Beach Hospital
          John F. Kennedy Memorial Hospital
          La Palma Intercommunity Hospital
          Methodist Hospital
          Mission Hospital
          Montclair Hospital Medical Center
          Orange Coast Memorial Medical Center
          Regional Council of Rural Counties (RCRC)
          Saddleback Memorial Medical Center
          San Antonio Community Hospital
          Sherman Oaks Hospital
          Sonora Regional Medical Center
          St. Joseph Health System
          West Anaheim Medical Center
           
          Analysis Prepared by  :    Mark Rakich / INS. / (916) 319-2086