Gender Bias Rampant In Workers’ Comp Cases, Women’s Groups Charge

By Melody Gutierrez
San Francisco Chronicle.

A Bay Area mechanical designer suffering from carpal tunnel syndrome said she had her workers’ compensation reduced for a reason that has caught the attention of women’s groups and lawmakers: She was postmenopausal.

And she’s not alone in having her permanent disability claim reduced for factors that Sue Borg, her San Mateo attorney, said are clear examples of gender bias in the handling of workers’ compensation claims.

Borg said she frequently sees cases where women injured in the workplace are “penalized” for gender-related factors like pregnancies and menopause.

On Wednesday, Assemblywoman Lorena Gonzalez, D-San Diego, will introduce AB305 in San Francisco, a bill she said would ensure that being female is not treated as a pre-existing condition by prohibiting a woman’s workers’ compensation from being reduced based on pregnancies, breast cancer, menopause, osteoporosis or sexual harassment.

“It seems like it should be obvious that we shouldn’t see this, but it happens in insidious ways all the time,” Borg said.

California employers are required to purchase insurance for on-the-job injuries, with employees receiving the benefit regardless of who was at fault. In exchange, workers can’t sue an employer for negligence related to their injury.

Workers who are permanently disabled receive compensation from insurers based on calculating how disabled they are and what portion of the injury is linked to their job versus previous health conditions or prior injuries.

System overhauled
The state workers’ compensation system of apportioning responsibility for an injury underwent major reforms under Gov. Arnold Schwarzenegger in 2004 in order to reduce the soaring costs of insurance premiums paid by employers across the state.

“Before that, an employer was on the hook for the entire disability no matter the cause or whether it was successive injuries at different employers,” Jerry Azevedo, spokesman for the California-based Workers Compensation Action Network, which works to reduce job-related injury costs to employers. “The concept of apportionment is the employer pays their fair share for the injury.”

Azevedo said that despite those reforms, a study last year found that California employers pay the highest workers’ compensation costs in the nation.

“Most states have seen their workers’ compensation claims go down,” Azevedo said. “California has been going up. We get more claims, more complicated claims and more permanent disability claims. This bill is a decade-old attack on apportionment.”

Breast cancer cited
The bill’s supporters say the issue of gender bias in workers’ compensation is real, despite laws prohibiting gender discrimination. The issue is especially evident in the way breast cancer is treated among firefighters and police officers, supporters say.

The California Applicants’ Attorneys Association, a lawyers’ group that is sponsoring the legislation, said a police officer who undergoes a double mastectomy for breast cancer linked to hazardous materials she encounters on the job would be considered zero to 5 percent disabled depending on her age, while a male officer with prostate cancer linked to hazardous materials exposure would be considered 16 percent disabled and would be paid for the injury.

That was the case for one San Francisco firefighter, who was denied any permanent disability compensation after undergoing a double mastectomy, according to a list of several examples provided by the attorneys association.

In another case outlined by the attorneys association, an Orange County hotel housekeeper who was injured moving a bed was told that although she was 100 percent disabled, her employer was liable for 2 percent of the injury based on health conditions “related to childbirth, obesity, age and naturally occurring events.”

Pointing to motherhood
“I’ve had a child, and if now being a mother is a pre-existing condition in California, I find that unacceptable,” said Christine Pelosi, chair of the California Democratic Party’s women’s caucus and daughter of House Minority Leader Nancy Pelosi.

Deborah Berger, co-president of the California Nurses Association, said she regularly hears of nurses injured — including while lifting patients — having their workers’ compensation reduced due to osteopenia or osteoporosis, diseases found mostly in women that weaken the bones.

“That’s extremely troubling to us,” Berger said.

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