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California Workers’ Comp Fought as Sexist

LOS ANGELES (CN) — California's workers' compensation system so overtly discriminates against women it classifies loss of a breast to cancer as zero to 5 percent disability — and 5 percent only for women of child-bearing age, women say in a class action against the state.

Workers' comp benefits for some injuries are reduced "on the basis that the female gender itself or female reproductive biology is a 'risk factor' or a 'predisposing condition,'" according to the lawsuit filed on behalf of as many as 11,000 injured workers.

For instance, many women with carpal tunnel syndrome receive reduced benefits because workers' comp examiners say that being female predisposes them to the painful condition, the lawsuit states.

A woman past child-bearing age may get no benefits at all for having had a mastectomy because of work-related breast cancer, while a man who had his prostate removed would get benefits, according to the complaint.

"California's system of workers' compensation perpetuates the type of overt sex discrimination that is a relic of a past era," according to the July 6 Superior Court complaint. "It deprives women workers of fair compensation on the basis of stereotypes about gender and women's reproductive biology."

Defendants include the California Department of Industrial Relations, the Division of Workers' Compensation, the Workers' Compensation Appeals Board, and the Labor and Workforce Development Agency.

The state's institutional bias contributes to "the impoverishment of women workers and their families," plaintiffs' attorney Kathryn Eidmann of Public Counsel said in a statement. "Women workers in California neither receive equal pay for equal work, nor equal payouts when they're injured on the job."

Hours after the complaint was filed, defendant Christine Baker, director of the Department of Industrial Relations department, blasted the "sweeping allegations" as "misleading and superficial" and vowed to "vigorously defend the workers' compensation system against these unfounded accusations."

Baker said in a statement that the plaintiffs sent her a demand letter in April and she asked for more information to substantiate specific claims, but instead of answering, they sued.

"We can only surmise that the plaintiffs' counsel's refusal to identify and address any evidence of gender-based discrimination and their inflammatory claims of systemic gender bias are part of a larger agenda — one that is intended to undermine the system and undo successful workers' compensation reforms that have increased benefits, controlled costs and improved care," Baker said.

But plaintiffs' co-counsel Catherine Fisk, a professor of labor law at UC-Irvine School of Law, said the Industrial Relations Department's response to the demand letter "reflected a dismissal of the problem."

Providing more information "wasn't going to persuade them, but it would run out the statute of limitations on some of these claims," she said.

The case involves workers whose work-related injuries or conditions have been classified as permanent. They are evaluated by doctors known as "qualified medical examiners," or QMEs.

The examiners are "overwhelmingly male — in some areas and specialties, for example, less than 3 percent of the medical evaluators are women," the complaint states.

The examiners begin by giving workers "impairment ratings." For example, someone able to work only a one-fourth as much as previously might get an impairment rating of 75 percent. Those ratings must be based on detailed guidelines from the American Medical Association.

Next, examiners assign the workers "apportionment determinations," to indicate what percentage of the permanent disability was caused by the job rather than other factors, such as a pre-existing illness.

Two plaintiffs — Janice Page and Doreen Hansen — worked many years as law enforcement officers. Both had mastectomies to treat breast cancer caused, they say, by toxic chemicals to which they were exposed on the job.

But following the AMA guidelines, their qualified medical examiners gave each of them permanent disability ratings of zero percent: "no long-term physical loss or impact on future earning capacity," according to the lawsuit.

"This disability rating has no rational relationship to the profound physical, psychological, and emotional consequences that surviving breast cancer and a mastectomy can entail," the complaint states. "It is predicated on gender bias, disregard for women's bodies, and stereotypes about women's roles as mothers."

The latest edition of AMA guidelines does give higher ratings to mastectomy patients. But the previous edition is still used by California: It allows a 5 percent impairment rating only for women of child-bearing age.

"This rating scheme reflects a judgment that a woman's breast has no value, except to enable women to breastfeed children," the complaint states.

Lead plaintiff Leticia Gonzalez developed severe carpal tunnel syndrome from 17 years working at a computer terminal for a telecommunications company. When she applied for benefits, the QME found that her condition "is almost ubiquitous in the female population in her age demographic" and recommended cutting her benefits by 20 percent.

The complaint cites medical evaluations of other women who were given reduced impairment ratings because of their sex, such as psychiatric problems blamed partially on "perimenopausal symptoms."

The women and co-plaintiff Service Employees International Union seek class certification, declaratory judgment that California's workers' comp system violates state law and the federal and state constitutions, and an injunction ordering the state "to take reasonable and effective steps" to fix the problems.

Fisk and co-counsel Anne Hudson-Price, with Public Counsel, said their clients would be eager to settle the case.

Legislation that would have addressed the concerns about breast cancer, carpal tunnel syndrome and a few other conditions was vetoed last year by Gov. Jerry Brown. A revised version of the bill was introduced in January.

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