BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: June 25, 2014 2013-2014 Regular
Session
Consultant: Deanna D. Ping Fiscal:Yes
Urgency: No
Bill No: AB 2616
Author: Skinner
As Amended: April 29, 2014
SUBJECT
Workers' compensation: hospital employers: compensation.
KEY ISSUE
Should the Legislature create a disputable presumption for
workers' compensation eligibility if a hospital employee
contracts Methicillin-Resistant Staphylococcus aureus (MRSA)
skin infection in an acute care hospital?
ANALYSIS
Existing law establishes a workers' compensation system that
provides benefits to an employee who suffers from an injury or
illness that arises out of and in the course of employment,
irrespective of fault. This system requires all employers to
secure payment of benefits by either securing the consent of the
Department of Industrial Relations to self-insure or by securing
insurance against liability from an insurance company duly
authorized by the state.
Existing law creates a series of disputable presumptions of an
occupational injury for peace and safety officers for the
purposes of the workers' compensation system. These
presumptions include:
Heart disease;
Hernias;
Pneumonia;
Cancer;
Meningitis;
Tuberculosis;
Methicillin-Resistant Staphylococcus aureus (MRSA) skin
infections; and
Bloodborne infectious disease.
The compensation awarded for these injuries must include full
hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by workers compensation law. These
presumptions tend to run for 5 to 10 years commencing on their
last day of employment, depending on the injury and the peace
officer classification involved.
(Labor Code ��3212 to 3213.2)
Existing law provides that the presumptions listed above are
disputable and may be controverted by evidence. However, unless
controverted, the Workers' Compensation Appeals Board must find
is accordance with the presumption. (Labor Code ��3212 to
3213.2)
This bill extends the presumption that methicillin-resistant
Staphylococcus aureus (MRSA) infections are presumed to be job
related to certain hospital employees in an acute care hospital.
Specifically, this bill :
1)Contains findings and declarations concerning the incidence of
MRSA in health care settings that impact nurses.
2)Specifies that the term "injury" as used in the workers'
compensation law with respect to specified hospital employees
shall include MRSA that develops or manifests itself during a
person's employment at a hospital.
3)Specifies that the presumption applies only to hospital
employees who provide direct patient care at a general acute
care hospital.
4)Provides that this infection shall be presumed to arise out of
and in the course of employment.
5)Extends this presumption for a period of 60 days after the
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
employee has terminated employment with the hospital.
6)Allows the employer to dispute the presumption by requiring
the employer to prove by evidence that the disease or
condition is not related to employment.
COMMENTS
1. Background on methicillin-resistant Staphylococcus aureus
(MRSA)
Staphylococcus aureus, often referred to simply as "staph,"
are bacteria commonly carried on the skin or in the nose of
healthy people. Approximately 25% to 30% of the population is
colonized (when bacteria are present, but not causing an
infection) in the nose with staph bacteria. Staph bacteria
are one of the most common causes of skin infections in the
United States. Most of these skin infections are minor and
occur through direct physical contact of the staphylococci
with a break in the skin (cut or scrape). The staph can be
spread by the infected person to someone else or to an object.
Susceptibility to infection depends on factors such as
immunity and general state of health.
In the past, these staph infections typically have been easy
to treat with an inexpensive, short course, usually
well-tolerated antibiotics. Now, in most communities in the
U.S., over half of the staph causing skin infections are
resistant to commonly used antibiotics, and the infections
often return in spite of apparently successful initial
treatment.
Methicillin-Resistant Staphylococcus aureus (MRSA) is
Staphylococcus aureus that is resistant to the penicillin.
Originally, MRSA was confined to hospitals and long-term care
facilities. Many of these hospital-associated MRSA infections
caused very serious complications and were resistant to all
oral antibiotics.
More recently, a newer, more virulent strain of MRSA has
emerged in the community that causes boils, abscesses, and
other soft tissue infections that are not linked to previous
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
antibiotic use. It is called community-associated MRSA. It is
generally believed that the community-associated MRSA strains
did not originate from the strains of MRSA that cause
infections in hospitals and other healthcare facilities.
However, individuals seeking treatment for
community-associated MRSA would likely seek treatment in a
hospital due to the risks involved.
According to a recent national study published in the Journal
of American Medicine, about 77% of MRSA cases are from health
facility settings. This most recent data shows an improvement
from 2005 data, when 85% of MRSA cases were connected to
health care settings. Individuals at risk for MRSA include
workers in a healthcare setting, individuals visiting patients
in a healthcare setting, athletic facilities, dormitories,
military barracks, correctional facilities, and daycare
centers. However, MRSA is now found throughout the general
community.
2. State of Presumptions in California
Currently only public safety employees, such as police and
firefighters, can receive the benefit of presumptions that
injuries or conditions are job-related. The two exceptions to
the "only public employees" and "only safety officers" rules
for presumptions involve somewhat unique circumstances. A
small number 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 to
public employee firefighters. The other exception is for
certain public employee lifeguards, and that presumption is
limited to skin cancer.
The general rule in workers' compensation is that the employee
bears the burden of proving that the injury or condition is
work-related. However, the law has recognized certain
"presumptions" that shift the burden of proof to the employer
to prove that the injury or conditions is not work-related.
3. MRSA workers' compensation claims .
There is very little published data relating to the incidence
of MRSA in the workers' compensation system. According to the
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
Workers' Compensation Insurance Ration Bureau of California's
(WCIRB) "Report on 2011 California Workers' Compensation
Losses and Expenses" there were 319 total infections (specific
numbers on MRSA are not tracked) for the 2009 policy year.
WCIRB's "Report on 2012 California Workers' Compensation
Losses and Expenses" showed that for 2010 there were some 1400
infection cases. However, this information does not
differentiate among infections, and does not include
self-insured. The WCIRB relayed to committee staff that the
significant increase from 319 to 1400 claims is explained by a
change in the reporting requirements. Namely that that 2009
report was limited to death claims, all permanent disability
claims and all temporary only claims that exceed $5,000.
However, for the 2012 report (which provides data for the 2010
policy year), the claims reported were not limited by the 2009
criteria.
Committee staff also contacted the California Workers'
Compensation Institute (CWCI), a respected insurance industry
funded research and analysis organization. At the Committee's
request, CWCI drilled down into available claims data
contained in the Insurance Claim Information System (ICIS) to
attempt to get a better handle on the incidence of MRSA in the
workers' compensation system. This data base includes detailed
claims data from insured and self-insured employers. CWCI
advises that there have been 393 MRSA cases reported to the
ICIS since 2000. Of these cases, 6% were initially denied, but
eventually accepted, either by the payor/employer receiving
missing documentation and/or modifying its decision due to an
AOE/COE (Arising Out of Employment / Course of Employment)
determination or the employee prevailing in challenging the
denial. However, the data base only captures paid claim data,
so it was not possible to measure the extent of claims that
were ultimately denied due to AOE/COE issues or other
conditions.
Nonetheless, the data shows that approximately 30% of the
claims were "medical only" - that is, they did not involve any
lost work time. These minor infection claims cost, on average,
$4500. The remaining 70% of claims were more serious, involved
lost work time to at least some degree, and had average total
claim costs, which include medical costs, temporary and
permanent disability, of $300,000.
Hearing Date: June 25, 2014 AB 2616
Consultant: Deanna D. Ping Page 5
Senate Committee on Labor and Industrial Relations
4. Need for this bill?
Data from the U.S. Department of Labor shows that health care
is the second fastest growing sector of the United States
economy. According to the author's office, nurses and other
hospital workers who provide direct patient care are in
constant danger of being exposed to a variety of illnesses by
the nature of their work -and because of the physical nature
of patient care, combined with rising patient acuity, higher
levels of exposure to infectious diseases are occurring. The
author's office states that MRSA is a work-related contact
hazard for hospital employees and notes that in California,
health care acquired infections at hospitals account for
thousands of infections, some infections leading to death,
annually, according to the Department of Public Health -and
although infection control measures help slow the spread of
MRSA, they do not eliminate this job-related hazard. AB 2616
would extend the presumption that MRSA infections are presumed
to arise in the course of employment to hospital employees
that provide direct patient care in an acute care hospital.
5. Proponent Arguments :
Proponents bring attention to the fact that the worker's
compensation system already provides certain types of public
safety employees a rebuttal presumptive eligibility for heart
trouble, hernia, pneumonia, HIV, low back impairment, and more
recently MRSA. Proponents argue that registered nurses and
hospital workers by the nature of their work, which involves
ill patients, contagious diseases and medical equipment, are
in constant danger of being exposed to a variety of illnesses
and becoming injured by the use of medical equipment.
Proponents maintain that because of the nature of patient
care, combined with rising patient acuity and obesity, more
work related injuries and higher levels of exposure to
infectious disease are occurring.
Proponents argue that the potential for acquiring MRSA is a
constant work related hazard for healthcare workers -and
increasingly, hospital acquired MRSA is infecting hospital
workers and their patients. Proponents note that according to
the State Department of Public Health, healthcare associated
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
infections (HAIs) are the most common complication of hospital
care and are listed among the top ten leading cause of death
in the United States. Proponents also note that according to
the Office of Statewide Health and Planning and Development,
in 2007 there were 52,000 cases of MRSA-infected patients
across the state and according to the CDPH in 2012 there were
728 cases of severe hospital acquired MRSA bloodstream
infections reported by California's acute care hospitals.
Proponents argue that although infection control measures help
to stop the spread of MRSA and diseases, they do not eliminate
the job related threat of contracting MRSA or other diseases
completely.
Lastly, proponents argue that data from the CWCI and WCRIB
illustrate that despite the large number of MRSA infections in
California's acute care hospitals, infections of all types are
a very small portion of the worker's compensation system.
Further, proponents argue that the presumption for MRSA will
reduce the litigation over these cases and therefore save the
workers' compensation system money.
6. Opponent Arguments :
Opponents argue that there is no clinical or scientific data
which supports the need for this presumption under AB 2616.
Opponents note that much of the data referenced pertains only
to hospitalized patients and that there is a lack of data to
support the idea that healthcare workers following accepted
infection prevention behaviors are at risk for developing MRSA
skin infections as a result of their occupation. Opponents
contend that the fact that hospital employees face specific
types of risks in the workplace is not a justification for
altering the legal standard for determining what is or is not
an industrial injury. Opponents maintain there is no
statistical evidence that has proven that worker's
compensation claims by hospital employees for exposure to MRSA
are being inappropriately delayed or declined by employers or
insurers or any sort of demonstration that hospital employees
are negatively impacted by the current legal standard.
Opponents argue that AB 2616 establishes a costly precedent by
creating the first such presumption to private sector
employees.
Hearing Date: June 25, 2014 AB 2616
Consultant: Deanna D. Ping Page 7
Senate Committee on Labor and Industrial Relations
Opponents also argue that while AB 2616 is a rebuttable
presumption, a hospital could only overcome the presumption by
proving the complete absence of a relationship to work, which
given the realities of the workplace and worker's compensation
system would be incredibly difficult. Opponents also note that
AB 2616 explicitly prohibits consideration of a pre-existing
condition which creates a new, strict liability standard.
Lastly, opponents bring attention to the impact AB 2616 could
have on hospitals. Opponents argue that since a large
percentage of direct patient care workers are employed by two
or more hospitals, the bill could substantially increase
litigation among hospitals to determine which should be
responsible for the claims. Lastly, opponents note that since
approximately 75 percent of California's public and private
hospitals are self-insured, under law they must reserve for
the worst case scenario on each claim for their employee's
life expectancy. Opponents argue that any increase in worker's
compensation costs will have a direct impact on the hospital's
budget and the amount of resources available for patient care.
7. Prior Legislation :
AB 808 (Skinner) of 2012 - was identical to AB 2616 in the
form currently before the Labor Committee, but was held on the
Senate inactive file.
AB 375 (Skinner) of 2011 - contained nearly identical
provisions to this bill on Methicillin-Resistant
Staphylococcus aureus (MRSA) skin infections, but also
included bloodborne pathogens. That bill was refused passage
on the Senate Floor.
AB 1994 (Skinner) of 2010 - proposed similar provisions to AB
375, but also included additional conditions to which the
presumption would apply, such as back and neck injuries. AB
1994 was held on the Assembly Appropriations Committee
suspense file.
AB 664 (Skinner) of 2009 - was similar to AB 1994. AB 664 was
held on the Assembly Appropriations Committee suspense file.
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
AB 2754 (Bass), Chapter 684, Statutes of 2008 - added MRSA to
the list of ailments that are presumed work related for public
safety officers and firefighters
SUPPORT
California Nurses Association (Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
BD
California Applicants' Attorneys Association
California Labor Federation, AFL-CIO
California Professional Firefighters
Consumer Federation of California
LIUNA Locals 777 & 792
Union of Health Care Professionals
United Nurses Association of California
Voters Injured at Work
OPPOSITION
Acclamation Insurance Management Services
Adventist Health
AIA Insurance
Allied Managed Care Incorporated
American Insurance Association
California Association of Joint Powers Authority
California Chamber of Commerce
California Coalition on Workers' Compensation
California Grocers Association
California Hospital Association
California Manufacturers and Technology Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California State Association of Counties Excess Insurance
Authority
County of Los Angeles
Golden Oak Cooperative
Loma Linda University Medical Center
National Association of Mutual Insurance Companies
National Federation of Independent Business
Hearing Date: June 25, 2014 AB 2616
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Senate Committee on Labor and Industrial Relations
Republic Indemnity
Rural County Representatives of California
Safeway
Sedgwick Claims Management
The Association of California Healthcare Districts
The University of California
Hearing Date: June 25, 2014 AB 2616
Consultant: Deanna D. Ping Page 10
Senate Committee on Labor and Industrial Relations