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Gender bias suit may trigger comp reforms

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Legal and legislative pressure to end alleged gender bias in California's workers compensation system could lead to higher administrative and permanent disability costs.

Some sources say a recent lawsuit, which alleges that guidelines used to assess permanent impairment discriminate against female workers with breast cancer as well as other conditions, highlights a significant problem.

But others say few injured workers would be affected.

Still, if the suit or related efforts to change the state's law are successful, increased litigation will likely follow.

California is one of about a dozen states that use the fifth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment to asses and rate permanent impairment for injured workers. Some sources say there is gender bias in the guide.

The sixth and most recent edition of the AMA Guides, which is used in about 20 workers comp systems, to some extent addressed concerns that older editions lacked an unbiased rating system, sources said. California does not automatically use an updated version of the AMA Guides when it's published.

The alleged bias was at the heart of the lawsuit filed earlier this month in Los Angeles County Superior Court.

For example, the suit states that the fifth edition of the AMA Guides suggests a 0% impairment rating for a mastectomy resulting from occupational breast cancer in women past childbearing age, but the sixth edition suggests a 10% to 15% impairment rating, depending on the level of mobility affected.

The lawsuit, brought against the California Division of Workers' Compensation, the Workers' Compensation Appeals Board and others, has named three plaintiffs, including two female law enforcement personnel and a telecommunications company technician, as well as the California arm of the Service Employees International Union, which represents about 497,000 women. Two named plaintiffs developed breast cancer as a result of occupational exposure to hazardous material spills, vehicle fires and more, while the technician suffered carpal tunnel syndrome, according to the suit.

Some sources speculate that the complaint, alleging that injured female workers are subject to discriminatory apportionment determinations, is meant to push through legislation introduced earlier this year that addresses alleged gender bias in the state's workers comp system.

A.B. 1643, introduced by Democratic Assemblywoman Lorena Gonzalez of San Diego, would prohibit basing the apportionment of permanent disability on pregnancy, menopause, osteoporosis or carpal tunnel syndrome for any injuries occurring on or after Jan. 1, 2017. Medical evidence shows women suffer from osteoporosis and carpal tunnel syndrome at higher rates than men.

California Gov. Jerry Brown last year vetoed a similar bill, A.B. 305, saying it was based on a misunderstanding of the AMA Guides, although he did not state specifics.

“The lawsuit and A.B. 1643 appear to solve the same problem,” a spokesman for Ms. Gonzalez's office said in an email. “Our office has not had discussions with the lawyers working for the plaintiffs and so it is too early to tell how the lawsuit and the bill would work together, if at all.”

Longtime workers comp defense attorney Christopher D. Lear said in an email that he hasn't seen a single case where gender was the basis for apportionment.

The Long Beach, California-based managing attorney at Dietz, Gilmor & Chazen said he hasn't seen a single breast cancer case, either.

A.B. 1643 likely would affect “a bare fraction of California workers comp cases,” he said.

Still, the bill or the effect of legal precedent if the lawsuit is successful could cost California's workers comp system millions of dollars.

A May analysis of the bill by the state's Assembly Committee on Appropriations found it could lead to higher administrative costs in the range of $6 million. Citing the Department of Industrial Relations, the analysis also said 11,000 of 90,000 permanent disability cases involve women and include apportionment.

In a 2015 analysis of the now-dead A.B. 305, the committee said there could be “unknown but potentially significant” increases in permanent disability and litigation costs.

One of the attorneys who brought the gender-discrimination lawsuit against California's workers comp system, Annie Hudson-Price, Los Angeles-based staff attorney at pro bono firm Public Counsel, said the goal isn't to “overturn the AMA Guides or force the legislature to adopt the sixth edition.”

Rather, the plaintiffs are seeking an injunction and establishment of a “system of accountability,” which would include training and monitoring of medical evaluators, among other things, to ensure gender-based risk factors aren't used to calculate permanent disability benefits.

The higher incidence of carpal tunnel syndrome in women has also led to bias in the workers comp system, she said.

“There's this idea that the man's body is the standard and any deviation from that is considered something that should be reduced,” Ms. Hudson-Price said. “If it's more common in women, half the population, it shouldn't be something that's reduced, it should be a norm.”

Despite criticism of the AMA Guides being gender-biased dating back to at least 1990, “it hasn't been an issue we've seen raised a lot, certainly not in (this context),” said Albert B. Randall Jr., Baltimore-based principal at law firm Franklin & Prokopik P.C.

Most sources expect the lawsuit to fail, but note that California can be unpredictable.

As Mr. Randall said: “If it's going to be successful anywhere, it's likely going to be successful in California.”