What is the MRSA Presumption?

Labor Code Section 3212.8 provides that

(a) In the case of members of a sheriff’s office, of police or fire departments of cities, counties, cities and counties, districts, or other public or municipal corporations or political subdivisions, or individuals described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, whether those persons are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection, or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service or active firefighting services, such as stenographers, telephone operators, and other office workers, the term “injury” as used in this division, includes a blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection when any part of the blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection develops or manifests itself during a period while that person is in the service of that office, staff, division, department, or unit.  The compensation that is awarded for a blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection shall include, but not be limited to, full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workers’ compensation laws of this state. (b)(1) The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment or service.  This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. (2) The blood-borne infectious disease presumption shall be extended to a person covered by subdivision (a) following termination of service for a period of three calendar months for each full year of service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity. (3) Notwithstanding paragraph (2), the methicillin-resistant Staphylococcus aureus skin infection presumption shall be extended to a person covered by subdivision (a) following termination of service for a period of 90 days, commencing with the last day actually worked in the specified capacity. (c) The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall in no case be attributed to any disease or skin infection existing prior to that development or manifestation. (d) For the purposes of this section, “blood-borne infectious disease” means a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations.

What is MRSA?

According to the Centers for Disease Control, “Methicillin-Resistant Staphylococcus Aureus (MRSA) is a bacteria that is resistant to many antibiotics. Staph and MRSA can cause a variety of problems ranging from  skin infections and sepsis to pneumonia to bloodstream infections”

Who Is At Risk, and How Is MRSA Spread?

There are two ways that Humans can come in contact with MRSA. They are skin-to-skin contact and touching a contaminated object.

According to the CDC, anyone can get MRSA on their body from contact with an infected wound or by sharing personal items, such as towels or razors, that have touched infected skin. MRSA infection risk can be increased when a person is in activities or places that involve crowding, skin-to-skin contact, and shared equipment or supplies. People including athletes, daycare and school students, military personnel in barracks, and those who recently received inpatient medical care are at higher risk.

How Common Is MRSA?

According to the CDC, studies show that about one in three people carry staph in their nose, usually without any illness. Two in 100 people carry MRSA. There is not data showing the total number of people who get MRSA skin infections in the community.

What are MRSA Symptoms?

Most staph skin infections, including MRSA, appear as a bump. It can look like a boil, pimple or spider bite. The infected area on the skin that might be red, swollen, painful, warm to the touch, full of pus or other drainage and accompanied by a fever.

These infections most commonly occur at sites where the skin has been broken by cuts or scrapes, or on areas of the skin covered by hair, such as the back of the Neck, Groin, Buttock, Armpit, or Face.

Who does it apply to?

This presumption is more extensive and applies both to Police and Safety and more agencies than other presumptions.  The definition for the positions for which the presumption applies is expansive.  You should consult with your Department to see if it applies. Alternatively, consultation with an attorney is recommended.

Can the Presumption be rebutted?

Yes. The statute provides that it is disputable and may be controverted by other evidence.  This provision of the statute is quite vague.  Generally, the term other evidence would imply testimony, medical records or medical opinion.  Therefore, there is the requirement that the Employer produce actual evidence in order to controvert the presumption.

How can the Presumption be rebutted?

There a number of possible ways that the Presumption could be controverted. There could be evidence of to show that the disease was a pre-existing medical condition that the Injured Worker had prior to the start of their employment.  There might be medical records demonstrating a specific non-industrial event for which MRSA was contracted. When considering the mechanisms of injury, the most conceivable mechanism for a non-industrial contraction would be an individual who contracted the disease at a hospital while they were there treating for a non-industrial condition. A hospital is the most likely location for an individual to come in contact with MRSA.

With more than 23 years of expertise in defending workers’ rights, the Law Offices of Edward J. Singer, A Professional Law Corporation, is here to assist. If you have any questions concerning your rights, please do not hesitate to contact our offices.  Please contact us today concerning any workers’ compensation questions or issues.