Monday, June 6, 2011

Nurse's Presumption Bad Rx for CA

California AB 375 by Assemblywoman Nancy Skinner, D-Berkeley, would create the state's first presumption for workers in the private sector by providing that a blood-borne disease or Methicillin-resistant Staphylococcus aureus (MRSA) is presumed to be a work-related injury for the state's 150,000 hospital employees.

The California Assembly passed the bill Wednesday on a 49-25 vote and the bill marks Skinner's third attempt to create a presumption for workers who provide direct patient care in an acute care hospital. Her efforts in 2009 and again in 2010 both died when her legislation was held in the suspense file in the Assembly Appropriations Committee.

This year's bill does not cover the influenza A (H1N1) virus, as previous versions did, and it shortens the window for which a worker can attempt to invoke the presumption from five years after leaving employment to 180 days.

In addition, amendments made to the bill during this year's legislative session removed a provision that would have applied the presumption to neck and back injuries.

Regardless, passage of a presumption law applicable to private industry is bad precedent.

I won't jump on the Business band wagon and proclaim that a law that affects only 150,000 workers in the state is a "job-killer". That's a stupid argument when we all know that you can't move medical services out of state. 

And I don't agree with Labor's argument that working in hospitals creates a risk more unique than any other job - that's a safety issue, not a compensation issue.

Rather, the issue with AB 375 is precedence, aka the "slippery slope". If the science points to employment causation for any disease, exposure, or injury, then workers' compensation should be invoked to provide benefits.

If on the other hand the science says that the exposure is not employment related then there should be no benefits.

The Legislature should stop invoking mandates in place of science. Are some employers/carriers going to deny claims and/or create delays? Probably - but this is far more desirable on a case by case basis than declaring that regardless of the science someone is entitled to workers' compensation benefits.

The biggest problem with workers' compensation in most states is the culture of entitlement. This is provoked by laws such as AB 375 that mandate benefits regardless of what the science says.

AB 375 is wrong because it expands entitlement culture and this is the wrong direction for the health of workers' compensation as a social benefit and an industry.


  1. You preach Workers Comp as an entitlement and want to limit that entitlement as a way to control costs. 100 years ago the insurance industry made an agreement in exchange for indemnity against civil suits. So maybe we should legislatively eat away at just how much indemnity they get as they have eaten away at our benefits over the years????

  2. Hi Ronald - thanks for your comment.

    I'm not clear on what you are saying however. I'm not preaching work comp as an entitlement at all. I'm saying that work comp has become an entitlement through our culture.

    Work comp is nothing more than an insurance program - a legislatively mandated risk managent tool for both employers and employees.

    I agree with you that it has shifted far, far away from its original mandate and has succumbed to the largesse of special interests.

    I do advocate that work comp needs to be completely rethought and that its incentives (both obvious and subtle) need to be changed. Work comp rewards disability - is that good for anyone? Why not reward ABILITY? Why reward physicians for pushing back surgery, for instance, when in most cases that's the WORST thing that could be done medically? (and there is an enormous amount of SCIENTIFIC evidence that supports this).

    Anyhow - I'm glad that you read my blog and I invite more discussion!