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California Nurses Battered by Covid Seek Workers’ Comp Equity

April 7, 2022, 2:30 PM

California registered nurse Rosa Villarroel injured her back moving equipment in her hospital’s operating room in 2021, returned after two weeks to modified duty, and almost immediately got Covid-19. She was bedridden for five days, out for two weeks, and still had to wait two months for her employer to approve paperwork the occupational health doctor submitted to get her treatment.

Villarroel’s employer would have to make it easier for frontline hospital workers like her to access the state’s workers’ compensation benefits system under a bill pending in the California Legislature. The labor-backed bill could annually cost hospitals in the state as much as $1 billion, according to the California Hospital Association, which opposes the measure.

Villarroel is an RN at the University of California San Francisco Medical Center at Mission Bay. It was during her Covid-19 infection that the hospital finally agreed to provide physical therapy for her on-the-job injury, two months after she was hurt—instead of the usual one week after injury to aid recovery. With her body and leave exhausted, Villarroel didn’t fight her employer.

“We give our patients our all, sometimes even to the point of exhaustion ourselves. So when we’re injured, we deserve to be believed,” said Villarroel, a nine-year UCSF employee.

Different Law for Nurses

Police and firefighters, who are largely men, are presumed under the California Labor Code to have suffered injuries such as lower-back pain, post-traumatic stress disorder, and methicillin-resistant Staphylococcus aureus (MRSA) on the job and are automatically eligible for workers’ comp benefits. Nurses, in a female-dominated profession, must prove their illnesses and injuries were caused at work, according to current law.

Under S.B. 213, California nurses and other direct patient-care workers in acute-care hospitals who are injured on health-care’s front lines no longer would have to prove they were hurt or infected at work.

“The core of this bill is simple. S.B. 213 recognizes and addresses a glaring inequity in California law. It corrects an historical wrong made during a very different time,” author state Sen. Dave Cortese (D) said during Senate floor arguments. “Equity is only possible when all frontline professionals, who face the same risk of illness and injury due to the nature of their work, are given the same guaranteed benefits.”

The legislation would give nurses the same presumption as firefighters and law enforcement officers that their injuries, including post-traumatic stress disorder, respiratory disease, some cancers, and infectious diseases, including Covid-19, are occupational injuries.

Under current law, if a firefighter or emergency medical technician gets a hernia lifting a patient from a gurney at a hospital, he’s presumed to qualify for workers’ comp, Cortese said.

“When he hands the patient on the gurney over to the woman nurse—woman nurse—and she hurts her back, she has no workers’ compensation presumption. Same continuum of care, literally the same acuity of care, same frontline status,” he said. “In that split second during that hand off, the comp presumption disappears.”

California has 470,687 registered nurses with active licenses, according to the National Council of State Boards of Nursing.

The Senate passed the bill, which preserves employers’ ability to rebut workers’ claims, and now is in the Assembly. Gov. Gavin Newsom (D) hasn’t taken a position on the bill, spokesman Alex Stack said.

California Not Alone

California isn’t an outlier. Minnesota concluded that nurses’ infectious diseases and PTSD are suffered at work, said Stephanie Roberson, California Nurses Association government relations director.

The state “should be protecting this critical, essential workforce that are on the front lines, especially during a pandemic,” Roberson said.

Nursing was the leading occupation in California private industry to suffer the most non-fatal injuries in 2020, according to the state Department of Industrial Relations Commission on Health and Safety and Workers’ Compensation annual report for 2021. Nurses working for state government were the third-most frequent occupation with non-fatal injuries and illnesses, behind correctional officers and police and sheriff’s patrol officers. For local government, nurses were the eighth-most injured.

“This needs to be a statement by the state of California and the Legislature, the governor, that this needs to be the law of the state, that we need to ensure the health, welfare, and safety of nurses just like we do cops, just like we do firefighters,” Roberson said.

Costly Cure

The California Hospital Association called the legislation “unprecedented.”

“CHA came up with the estimated $1 billion price tag by factoring in what our larger hospital members have estimated their costs would be under this bill and then extrapolating that to apply to all hospitals in the state,” spokeswoman Jan Emerson-Shea said. It’s an incredibly expensive presumption, she said, because of higher litigation costs.

California’s workers’ compensation system “is the most comprehensive in the nation. If an injury happened on the job, employers must accept liability. And while employers have 90 days to investigate a claim, they must provide medical treatment while investigating a claim,” Emerson-Shea said.

Most hospitals are self-insured and motivated to keep costs low, meeting or exceeding California Division of Occupational Safety and Health requirements, and quickly addressing comp claims, she said.

The California Chamber of Commerce declared the bill a “job killer” that would significantly increase comp costs and establish “an extremely concerning precedent for expanding presumptions in the private sector.”

UC spokeswoman Heather Harper said current workers’ compensation law is equitable for employees and employers and is generally interpreted in favor of employees. “The vast majority of hospital workers’ claims at UC are approved.”

From fiscal year 2016 to FY 2019, the UC system approved 79% of the 4,813 claims for injuries related to the presumptions in S.B. 213. “However, if SB 213 is passed into law, the UC estimates costs will exceed several tens of millions of dollars annually,” Harper said in an email.

The legislation is backed by the California Professional Firefighters, state council of the International Association of Fire Fighters, representing over 30,000 career firefighting and emergency medical service personnel statewide.

“These presumptions will ensure that those hospital workers providing direct patient care will no longer face the burden of proving that those injuries occurred in the course of their employment and will have better and timely access to the care that they need,” Christy Bouma, then-governmental affairs director for the firefighters’ group, said in a letter supporting the bill. Newsom on March 14 appointed Bouma as his legislative affairs secretary.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Tina May at tmay@bloomberglaw.com