Gov. Brown forces AB 2616 to walk the plank
Men that toiled under the Jolly Roger did so outside of the law. As a result, a conventional civil justice system was unavailable to them. To ensure that those injured on the job were appropriately compensated, and to maintain the esprit de corps necessary to continue their dangerous work, pirates were the first to introduce and enjoy the benefits of something like a workers’ comp system.
As the name suggests, workers’ compensation provides restitution to workers for injuries they sustain in the course of employment. The system operates on the notion that no fault is necessary for an employer to incur the expense of paying for an injury suffered by an employee while on the job.
Pirates apportioned recompense according to the severity of the sacrifice made. An arm was worth more than a finger. According to the same principle, “handedness”, the dominance of one hand over another, was factored into compensation. Losing a left arm was considered less severe than losing a right arm. (Interestingly, left legs were less valuable than right legs).
In the decades since the days of fully rigged sailing ships and that sort of piracy, the need for workers’ comp has not diminished. In the United States, all states but Texas and (as of 2013) Oklahoma require companies with three or more to carry workers’ compensation insurance. A balance between workers’ comp and civil remedies has evolved over time.
Because no-fault workers’ comp ensures that employees injured at work receive compensation, a direct nexus between work and an injury is crucial to maintaining the actuarial integrity of the workers’ comp insurance market.
The rare exceptions in which an injury or disorder experienced away from work is considered work-related are misleadingly named “rebuttable presumptions.” In spite of their name, these presumptions require that an extraordinary evidentiary standard is met to demonstrate that an injury is not work related. In practice, a rebuttable presumption often is irrefutable.
Still, in certain limited cases, the California Legislature has seen fit to provide a narrow subset of professions, often publicly employed public safety-related professions, with rebuttable presumptions that define injuries arising as a result of their job (for instance, cancer, pneumonia and Lyme’s disease). By flipping the burden of proof, presumptions add huge expense to the workers’ comp system.
Authored by Assemblymember Nancy Skinner, D-Berkeley, A.B. 2616 sought to create a rebuttable presumption that hospital employees who contract methicillin-resistant Staphylococcus aureus (MRSA) do so while on the job. This was Skinner’s fourth attempt at providing rebuttable presumptions to hospital employees, though this attempt was less broad in its scope than some of the previous efforts.
Seen most charitably, seeking a rebuttable presumption for hospital employees presumes that the workers’ comp system currently fails to adequately compensate workers that contract MRSA. Curiously, no evidence, beyond anecdote, was offered to demonstrate the existence of such a compensation gap.
A less-charitable analysis is that the bill was introduced to provide horizontal uniformity between well-organized health and safety professions. Whatever the authentic motivation, the implication of A.B. 2516 was clear. The bill expanded the universe of professions eligible for rebuttable presumptions, and the reasons for that eligibility.
The Legislature saw fit to pass the bill along more-or-less predictable partisan lines. In Gov. Brown’s veto message, he expressed fears that extending presumptions about specific industrial risks to the private sector would create a bad precedent. He does not believe that rebuttable presumptions belong in the private sector.
Brown’s reasoning deserves some attention. There are competing rationales when it comes to the expansion of presumptions. The first is predicated on the notion that professions should receive special legislative treatment because of the nature of the peril they face and the difficulty associated with demonstrating how that peril leads to injury. Under this rationale, specific hard-to-demonstrate perils militate toward special treatment. Thus, it is simple to understand why Skinner believes that health-care workers are deserving of a rebuttable presumption.
Alternatively, if the rationale for a rebuttable presumption tracks more closely with the special nature of the work itself – publicly employed safety professions – then offering rebuttable presumptions to private sector workers is inappropriate.
The reason that conflict over the applicability of rebuttable presumptions will continue in legislative sessions to come is that the original intent of rebuttable presumptions has been made malleable by time. Unmoored from history, the expansion rationales have been made to stand as arguments on their own.
The policy question has been recast and the result will determine whether the costly and smothering social safety net applies ever more broadly to private industry.
Fundamentally, which system is more desirable? One that grants, more often than not, automatic payment on the basis of risk, or one that recognizes that specific jobs are in need of special consideration? At the risk of mixing metaphors, with their noses under the tent and short of a gubernatorial veto, is there any stopping the pirates?