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