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COLUMN
The GOP Narrative
posted on 09/06/2011

By Julius Young

The continuing narrative of the GOP both nationally and at the state level will be jobs, jobs, jobs.

Whether President Obama can rise to the occasion with his soon to be announced jobs initiative remains to be seen. Jerry Brown unveiled a proposal this week, but that plan already appears mired in controversy.

Californias Republican Party is fractured and weak. But its narrative is consistent, and it stresses a connection between job creation/job retention and workers comp.

Take for instance the piece by Assembly Republican leader Connie Conway of Visalia thats featured in Jon Fleischmans Flash Report website Flash Report website, which mentions three pending workers comp bills, AB 375, AB 1175, and SB 432.

One cant help but notice Conways reference to Texas Gov. (and Presidential candidate) Rick Perry. Perry is already picking up some notable support in the comp community. CHSWC commission member Sean McNally was listed as an event sponsor in a fundraising invitation for Perry that was widely circulated this week.

But lets dig a bit deeper than Conways soundbites:

For those who havent been following this years California legislative process, AB 375 (Skinner) would create the first presumption for private employees. Here (at some length) is the Senate Appropriations Committee analysis of AB 375:

"AB 375 would provide, with respect to hospital employees, who provide direct patient care in an acute care hospital, that the term "injury" include a blood borne infectious disease or methicillin-resistant Staphylococcus aureus (MRSA) that develops or manifests itself during the period of the persons employment with the hospital. This bill would further create a disputable presumption that the above injury arises out of and in the course of the persons
employment if it develops or manifests, as specified."

According to the Committee Analysis:

"MRSA is a bacterium responsible for difficult-to-treat infections. MRSA are by definition strains of Staphylococcus aureus that are resistant to a large group of antibiotics including penicillins and cephalosporins. Under this bill, if a
hospital employee who provides direct patient care in an acute care hospital develops a blood borne infection or MRSA skin infection, it is presumed the injury arose out of and in the course of employment and is therefore, compensable."

The analysis notes some of the issues surrounding this bill:

i"This bill specifies that the bloodborne infectious disease presumption shall be extended to a hospital employee following termination of service for a period of 180 days, commencing with the last date actually worked. The MRSA presumption shall be extended to a hospital employee following termination of service
for a period of 90 days commencing with the last day worked."

"The state has seven general acute care hospitals operated by the California Department of Corrections and Rehabilitation (3) and the Department of Development Services (4)."

"Most state employees receive industrial disability leave, which is full gross pay less the amount deducted for taxes for the first month and two-thirds of full gross pay thereafter. There is no maximum on industrial disability leave and can be received for up to one year. State hospital employees are eligible to
supplement their industrial disability leave benefits with any paid leave credits they have to bring the amount up to their regular earnings amount. After one year, the state employee is eligible for up to one year of temporary disability benefits. Non state hospital employees may receive temporary disability benefits for up to 104 weeks. In 2011, a year of workers
compensation temporary disability benefits for an employee may be up to $51,307.88, increasing to $52,546.00 ($1,010.55 x 52 weeks) in 2012. "

"If a licensed vocational nurse or registered nurse (several job classifications are involved in providing direct patient care) working in a state acute care hospital contracts a bloodborne infectious disease or MRSA, the cost could range from approximately $33,000 to $65,000 for one year of industrial disability leave benefits. The employee would be eligible for up to 52 weeks of temporary disability benefits after exhausting the industrial leave benefits or $52,546.00 (in 2012). "

"Staff notes AB 947 (Solorio), also on the committees file, would allow the extension of temporary disability benefits under specified conditions for up to 240 weeks. Also, there are potentially thousands of state employees who provide direct patient care in settings other than acute care hospitals. For example, in 2009, of the 3,891 registered nurses in Bargaining Unit 17, roughly two-thirds are "level of care" nurses providing or supervising direct patient care in mental health hospitals, youth and adult correctional institutions,developmental
centers, and the states veterans homes."

"Most persons recover from job injuries but some continue to have medical problems. Permanent disability is any lasting disability that results in a reduced earning capacity after maximum medical improvement is reached. If a persons injury or illness results in permanent disability the person is entitled to permanent disability benefits, even if he or she is able to return to work. Permanent disability benefits are limited. If a person loses income, permanent disability benefits may not cover all the income lost and if the person experiences losses unrelated to ability to work, permanent disability benefits will not cover those losses."

"A doctor makes the determination if an injury or illness caused permanent disability. The doctor also determines if any of the disability was caused by something other than the work injury (for example, a previous injury or other condition) in a process known as apportionment. The disability is stated as a percentage which equals a specific dollar amount, depending on the date of the injury and the persons average weekly wages at the time of injury. If the person was injured on or after Jan. 1, 2005, the permanent disability award may be increased or decreased by 15 percent, depending on whether the person worked for an employer with 50 or more employees and the employer offers a salary continuation program and the person accepts or declines regular, alternative or modified work. Permanent disability benefits are normally paid when temporary disability benefits end and a doctor has indicated the person has some permanent effects from a workplace injury. A person with a disability rating of less than 70 percent would receive $230 weekly. A person with a disability rating of more than 70 percent would receive $270 weekly. These amounts have not
changed since 2006."

"In addition to temporary and permanent disability benefits, a person could incur substantial medical costs. For example,lifetime health care costs for a person with hepatitis B have been estimated at $65,000 in the absence of liver
transplantation ($100,000 for hepatitis C). Hepatitis C infects about three and a half more times as many people in the United States than does hepatitis B and more than 80 percent of hepatitis C patients will develop chronic liver disease, as compared to only 20 percent of hepatitis B patients. The cost per liver transplantation is in the range of $280,000 for one year. Continuing medical care can run in the hundreds of thousands of dollars over a persons lifetime. According to one estimate, the lifetime cost of medical care for an HIV patient was $618,900 which also noted that total treatment costs are increasing. Ironically, this may be because better treatment options are increasing total costs by prolonging life. According to one estimate, the cost to treat a MRSA infection can range from $1,000 to $7,500 or more if extensive hospitalization is required."

"This bill may result in increased Medi-Cal costs in non-contract hospitals, because the allowable costs of hospital cost reports include workers compensation expenditures. Any increase may be minor as the state is moving toward a diagnosis-related system for reimbursing hospitals and is not negotiating any new contracts and costs would be spread across all payors. This bill could increase costs to the University of California (UC) which operates five hospitals. There are an estimated 385 non-state acute care hospitals and 140,000 full time employees subject to the bill. In general, the cost for a state hospital employee and a non state hospital employee with a bloodborne infectious disease presumption or a MRSA presumption would be in the first year cost difference between industrial disability leave benefits and temporary disability benefits. The state (and UC) would likely appropriate additional funding for increased workers compensation costs and private employers would likely experience higher workers compensation premiums."

"Existing presumptions (see Labor Code Sections 3212 to 3213.2) are extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months (120 months for a cancer presumption for police and firefighters) in any circumstance, commencing with the last date actually worked in the specific capacity. AB 2754 (Bass) Chapter 684/2008 added Labor Code 3212.8 to provide this presumption for members of a sheriffs office, or police or fire departments of cities, counties, districts, or other public or municipal corporations or political subdivisions and active firefighting members of the Department of Forestry and Fire Protection or any other county forestry or firefighting department or unit. Most law enforcement and firefighting personnel are covered under Labor Code 4800 and receive benefits equal to their full salary."/i

Theres been great concern about employers at the precedent that would be set with presumptions being extended to private employers. And there is concern about the costs to the state that the bill would entail.

Another bill mentioned in Conways piece is AB 1175. But thats not a workers comp bill.

Conway also mentions the controversy over fitted versus flat sheets. Thats SB 432 (De Leon), the bill to require fitted sheets in hotels. Currently SB 432 is not set for another legislative hearing:

What SB 432 and AB 375 appear to have in common is that they are both sponsored by powerful labor unions and both targeting specific conditions (hospital MRSA infections and hotel housekeeper back injuries) that many believe to be linked to significant numbers of work injuries in those industries.

Since there are still going to be hotels and hospitals whether or not these bills are passed and signed, they are in and of themselves unlikely to be "job killers". But the GOP narrative seeks to link Democrats, liberals and the legislature to the concept of job killer. Thats a dangerous position for a politician to be in these days.

Thats the dilemma for the Brown Administration as we head towards the end of the legislative year.

iJulius Young is an applicants attorney for the Oakland law firm of Boxer Gerson. This column was reprinted with his permission from his blog, http://www.workerscompzone.com/i
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