BILL ANALYSIS �
AB 375
Page 1
Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON INSURANCE
Jose Solorio, Chair
AB 375 (Skinner) - As Introduced: February 14, 2011
SUBJECT : Workers' compensation: presumptions
SUMMARY : Provides that back or neck injuries, MRSA, and
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 specified hospital employees
shall include blood-borne infectious disease, neck or back
impairment, or 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)Specifies that the presumptions apply only to hospital
employees who provide direct patient care at an acute care
hospital.
5)Extends to 180 days the period beyond separation from hospital
employment during which a hospital employee may rely on the
presumption relating to blood-borne infectious disease.
6)Extends to 90 days the period beyond separation from hospital
employment during which a hospital employee may rely on the
presumption relating to MRSA or back and neck injuries.
7)Contains Legislative findings and declarations in support of
the bill's proposals.
EXISTING LAW :
1)Establishes a comprehensive system of workers' compensation
AB 375
Page 2
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, and
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.
3)Provides safety officers (specified police, sheriff, and
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 conditions included in this bill.
FISCAL EFFECT : According to the Assembly Insurance Committee
analysis of AB 664 (Skinner) of 2009 and AB 1994 (Skinner) of
2010, potential General Fund costs of several hundred million
dollars. AB 375 is similar to, but identical to, AB 664 and AB
1994.
COMMENTS :
1)Purpose . The author states that this bill is needed for the
following reasons:
"According to U.S. Department of Labor, health care is the
second fastest growing sector of the United States economy,
employing over 12 million workers. Women represent nearly 80
percent of the health care work force.
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. Each year thousands of
nurses, nursing aides, and health care workers sustain
musculoskeletal disorders (MSDs) from manual lifting of
patients and residents.
AB 375
Page 3
According to the 2009 Bureau of Labor Statistics, direct-care
registered nurses ranked 7th among all occupations for the
number of cases of MSDs resulting in days away from work
exceeding that of workers in construction, mining, and
manufacturing.
Additionally, blood-borne diseases and methicillin-resistant
Staphylococcus aureus (MRSA) are contact work related hazards
for hospital employees. In California health care acquired
infections in hospitals account for an estimated 200,000
infections and 12,000 deaths annually, according to the State
Department of Public Health. 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."
2)Presumption of compensability . Under current law, the only
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. In 2008, 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), 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
AB 375
Page 4
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 argue that there is no rationale to
extend the concept of presumptions to employees who are not 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)Prior legislation . AB 664 (Skinner) of 2009 and AB 1994
(Skinner) of 2010 proposed similar provisions to AB 375, but
also included additional conditions to which the presumption
would apply, and, in some circumstances, longer
post-employment periods of time when the presumption would
apply. AB 664 and AB 1994 were held on the Assembly
Appropriations Committee suspense file.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 375
Page 5
California Nurses Association/National Nurses Organizing
Committee (Sponsor)
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
CA Official Court Reporters Association
California Labor Federation
California National Organization for Women
California Professional Firefighters (CPF)
California Teamers Public Affairs Council
Consumer Attorneys of California
Engineers and Scientist of California
International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
San Bernardino Public Employees Association
UNITE HERE!
United Food and Commercial Workers - Western States Conference
United Nurses Associations of California/Union of Health Care
Professionals (UNAC/UHCP)
Utility Workers Union of America, Local 132
Opposition
Acclamation Insurance Management Services
Allied Managed Care
Alpha Fund
American Insurance Association (AIA)
Association of California Healthcare Districts (ACHD)
Association of California Insurance Companies (ACIC)
California Association for Health Services at Home (CAHSAH)
California Association of Joint Powers Authorities (CAJPA)
California Chamber of Commerce (CalChamber)
California Coalition on Workers' Compensation (CCWC)
California Grocers Association (CGA)
California Hospital Association (CHA)
California Manufacturer & Technology Association
California Special Districts Association (CSDA)
California State Association of Counties (CSAC)
County of San Bernardino
CSAC-Excess Insurance Authority (CSAC-EIA)
Regional Council of Rural Counties (RCRC)
Western Occupational and Environmental Medical Association
(WOEMA)
AB 375
Page 6
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086