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Bill to end gender bias in workers comp concerns employers

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ANAHEIM, Calif. — Out of all the bills this year that could impact California's workers compensation industry, the gender equality bill holds the most concern, according to a California legal expert.

California Assemblywoman Lorena Gonzalez, D-San Diego, this year introduced A.B. 1643, which would prohibit the apportionment of permanent disability benefits due to pregnancy, menopause, osteoporosis or carpel tunnel syndrome for physical or psychiatric injuries occurring on or after Jan. 1, 2017.

“The provision is basically telling the employers in the state of California that they are financially responsible for nonindustrial disability that they did not cause, making this no longer a workers compensation system but just a compensation system,” Jason Schmelzer, Sacramento, California-based legislative advocate and partner at Shaw/Yoder/Antwih Inc., said Wednesday at the 2016 California Coalition on Workers' Compensation Conference in Anaheim, California.

A class action lawsuit was recently filed in Los Angeles County Superior Court against the California Division of Workers' Compensation, the Workers' Compensation Appeals Board and others alleging that injured female workers are subject to discriminatory apportionment determinations due to the state's use of the fifth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Mr. Schmelzer said this suit is “a sign that this is going to be taken seriously and it has begun to be pursued seriously.”

The bill also provides that “the impairment ratings for breast cancer and the after effects of the disease, known as sequelae, shall in no event be less than comparable ratings for prostrate cancer and its sequelae.”

According to Mr. Schmelzer, California's Assembly Insurance Committee and Senate Labor Committee performed several analyses that proved this is essentially just “different things that have different levels of impairment” based on the treatment that is received. They are not corellating injuries, illnesses and results. “It's unscientific, and that's it,” he said.

Ms. Gonzalez had originally introduced a similar bill, A.B. 305, in February 2015 that had been vetoed by Gov. Jerry Brown in October.

“Normally, when the governor vetoes a bill, the response is to work toward the middle; that is not the approach that the author of this bill is taking,” Mr. Schmelzer said.

Other bills that Mr. Schmelzer addressed at the workers compensation legislation session would impact police and firefighters. A.B. 2493, introduced May 31 by Assemblywoman Toni G. Atkins, D-California District 78, expands eligibility for presumptions to personnel that have any exposure to fire fighting or suppression, and it doesn't need to be their main job duty.

Mr. Schmelzer said that the governor historically chooses not to expand eligibility or presumptions unless there is a data-driven case, “which we haven't seen exist at this time.”

Also mentioned was S.B. 897, introduced Jan. 21 by Sen. Richard D. Roth, D-Riverside, that adds one additional year to the one year allowed for recovery for police and fire fighters suffering a catastrophic injury at the hands of another.