Zaglin: Expanding Presumptive Injuries for Health Care Workers
Tuesday, March 30, 2021 | 0
Senate Bill 213 is still working its way through the California Legislature and, as such, is not yet in effect. Because health care workers have significantly increased exposure or susceptibility to particular work-related injuries or illnesses, Senate Bill 213 aims to protect them by providing easier access to the workers’ compensation system.
Comparing SB 213 and SB 1159
Gov. Gavin Newsom signed Senate Bill 1159 into law on Sept. 17, 2020, as an urgency statute, and it remains in effect until Jan. 1, 2023, at which time it is repealed. Senate Bill 1159 created new Labor Code sections 3212.86, 3212.87 and 3212.88, which establish specific guidelines for handling claims related to specified employees, including health care workers (section 3212.87) who provide direct patient care, and custodial employees at health care facilities who have been in contact with COVID-19 patients as a result of their employment.
While we can all understand the reasoning behind the presumptions for COVID-19 in relation to certain health care workers, Senate Bill 213 proposes what appear to be everlasting presumptions for multiple conditions that meet and exceed the presumptions currently given to public safety officers.
Senate Bill 213 would define “injury” for hospital employees who provide direct patient care in acute care hospitals to include infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder and respiratory diseases. It would create rebuttable presumptions that such injuries arose out of and in the course of employment, and extend these presumptions for specified time periods after termination of employment.
As of Jan. 1, 2023, COVID-19 would be included in the definitions of infectious and respiratory diseases, effectively extending the COVID-19 presumption for certain health care workers beyond the date when section 3212.87 is repealed.
Presumptive conditions for injuries covered by SB 213
There are multiple presumptive conditions under Senate Bill 213 and extensions of the presumptions for various periods following termination of employment, depending on the type of injury. Unless an infectious disease suffered by hospital employees covered under the bill is attributed to a methicillin-resistant Staphylococcus aureus skin infection, the presumption that such injury arose out of and in the course of employment would be extended for a period of three months for each full year of employment, but not to exceed 60 months. If the infectious disease is attributed to a methicillin-resistant Staphylococcus aureus skin infection, the presumption would be extended 90 days.
With respect to cancer that develops in hospital employees, the presumption that it arose out of and in the course of employment would be extended three months for each full year of employment, but not to exceed 120 months. For musculoskeletal injuries, the presumption would be extended three months for each full year of employment, but not to exceed 60 months.
Senate Bill 213 broadly defines musculoskeletal injuries to include injury to the muscles, tendons, ligaments, bursas, peripheral nerves, joints, bones or blood vessels. This is an enormous expansion beyond the lower back presumption currently afforded to specified public safety officers. Foreseeably, Senate Bill 213 would afford hospital employees the opportunity to file claims during the post-termination period for something as minor as a toe or finger.
For post-traumatic stress disorder claims, the presumption would be extended three months for each year of employment but not to exceed 36 months. For respiratory diseases, including chronic obstructive pulmonary disease, asthma or COVID-19, the presumption would be extended three months for each year worked but not to exceed 120 months.
Similar to Labor Code Section 3212.87, enacted as part of Senate Bill 1159, Senate Bill 213 would create a presumption of compensability for COVID-19-related illnesses and deaths suffered by certain health care workers following termination of employment. However, Senate Bill 213 would extend the period following termination that a COVID-19-related illness or death is presumed compensable, from the 14-day period following termination in section 3212.87 to up to 120 months following termination.
Senate Bill 213 also encompasses a larger scope of injuries that are presumed compensable following termination of service as compared to section 3212.87. At the same time, Senate Bill 213 would limit the type of employee entitled to the presumption after Jan. 1, 2023, to only hospital employees who provide direct patient care in acute care hospitals, defined in subdivision (a) or (b) of Section 1250 of the Health and Safety Code.
While Labor Code section 3212.87 also references Section 1250, it includes subdivisions (a), (b), (c), (m) or (n).
Senate Bill 213 would create a presumption of compensability for a broad range of injuries suffered by hospital employees providing direct care to patients at acute care hospitals. While the scope of injuries and the post-termination period during which such injuries are presumed compensable would be extended beyond Jan. 1, 2023, the class of employees to which these presumptions would apply would be more limited.
Given the employer’s burden under Senate Bill 213 to rebut the presumption, it is imperative that stakeholders familiarize themselves with this proposed legislation to mitigate potential exposure. If passed and signed into law, we anticipate that this legislation will result in proliferation in claims, given the post-service extensions. We would also anticipate new legislation aimed at expanding the types of presumptive injuries for public safety officers to mirror those afforded to hospital workers under Senate Bill 213.
Aaron C. Zaglin is an associate attorney with workers' compensation defense firm Laughlin, Falbo, Levy & Moresi LLP's San Francisco office. This post is printed with permission from the firm.