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Gender-based workers comp standards on trial


California's workers compensation system discriminates against female workers by using “gender-based risk factors” to calculate permanent disability benefits, according to a lawsuit.

Filed Wednesday in Los Angeles County Superior Court, the class-action lawsuit against the California Division of Workers' Compensation, the Workers' Compensation Appeals Board and others alleges 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.

For example, women past childbearing age are generally assigned an impairment rating of 0% for a mastectomy resulting from occupational breast cancer and women who can still bear children are assigned an impairment rating of up to 5%, the lawsuit states. Meanwhile, men are generally assigned an impairment rating of 16% to 20% for the removal of a prostate resulting from occupational prostate cancer.

The state's workers comp system “deprives women workers of fair compensation on the basis of stereotypes about gender and women's reproductive biology,” according to the lawsuit.

Democratic Assemblywoman Lorena Gonzalez of San Diego sought to prohibit the use of gender-related characteristics in the calculation of permanent disability benefits by introducing A.B. 305 in February 2015. However, Gov. Jerry Brown vetoed the bill in October, saying it was “based on a misunderstanding of the American Medical Association's evidence-based standard, which is the foundation of the permanent disability ratings, and replaced it with an ill-defined and unscientific standard.”

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

The lawsuit was filed by a group women who have been injured on the job and the Service Employees International Union California State Council, which represents more than 700,000 California workers, about 497,000 of which are women.

The plaintiffs

• According to the lawsuit, Leticia Gonzalez experienced “significant discomfort” from working at a computer every day as a technician for a telecommunications company. She filed a workers comp claim, began seeking medical care and ultimately underwent a surgery that didn't alleviate all her pain. A qualified medical examiner concluded in 2014 that Ms. Gonzalez's injuries were caused by her job, but attributed 20% of her disability to nonindustrial factors since “she has multiple risk factors for carpal tunnel syndrome primarily age and gender” and “carpal tunnel compression neuropathy is almost ubiquitous in the female population in her age demographic,” the lawsuit states.

• As a police officer, Dorene Hansen's duties included investigating major vehicle accidents and hazardous material spills and collecting evidence at the scenes of car, home, and business fires, according to the lawsuit. After being diagnosed with cancer in her left breast, she underwent a double mastectomy and had the lymph nodes along her left side removed. Officer Hansen filed workers comp claims in 2007 and 2008, but a qualified medical examiner assigned her a 0% permanent disability rating despite concluding that her breast cancer was caused by her employment, the lawsuit states.

• Working in law enforcement for 26 years, Sgt. Janice Page was exposed to numerous carcinogenic toxins, such as vehicle fires and exhaust fumes, according to the lawsuit. She was diagnosed with breast cancer in 2012 and underwent a total of five surgeries, including a unilateral mastectomy to remove her right breast. Sgt. Page filed a workers comp claim and, though the breast cancer was determined to be work-related, a qualified medical examiner in 2013 assigned her a 0% disability rating, the lawsuit states.

The plaintiffs are seeking an injunction, “requiring defendants … to take reasonable and effective steps to eliminate the apportionment of permanent disability awards to risk factors of gender or female reproductive biology,” such as menopause and pregnancy history, according to the lawsuit.

Among other things, the plaintiffs also request that the California workers comp system establish a “system of accountability,” which would include training, monitoring and identifying potential violations, to ensure gender-based risk factors aren't used to calculate permanent disability benefits.