New studies show that women who undergo cancer treatments during pregnancy may be more likely to see good outcomes for themselves and the fetus. But anti-choice activists want to know why women won't "sacrifice themselves" anyway.
A new study has come out stating that pregnant women who have breast cancer may no longer have to worry about increased risk to themselves or their fetus if they undergo treatment while pregnant. According to a press release:
Pregnant women treated for breast cancer are more likely to survive than patients of the same age not pregnant when cancer was diagnosed, a U.S. study found.
Five years after their diagnosis almost 74 of the women diagnosed with breast cancer during pregnancy were still alive, while of those who were not pregnant when they got treatment, 55.75 percent survived to the five-year mark, the Los Angeles Times reported Thursday.
The study to be presented at a meeting of the American Society of Clinical Oncology in Washington is likely to help lay to rest the lingering belief that pregnancy is a uniquely dangerous time for a woman to discover breast cancer.
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Pregnant women diagnosed with breast cancer were long urged to terminate a pregnancy or to wait until giving birth to begin aggressive treatment.
The report supports a widespread shift in medical practice that says a pregnant breast cancer patient can begin chemotherapy as soon as her first trimester is over and resume treatment with radiation, follow-on chemotherapy or surgery after the baby’s birth.
The study findings are important, researchers say, since more women are choosing to start or complete families later in life, thus increasing the chances that breast cancer and pregnancy could coincide.
Anti-choice advocates are taking this to be a sign that abortion is no longer ever necessary when a pregnant woman has cancer. But some are actually bemoaning the idea that women are having treatment at all rather than “sacrificing” their health for the sake of the fetus.
Dismissing the premise that abortion is necessary when the mother’s life is in medical danger, [Pro Life Action League Executive Director Eric Scheidler] emphasized, “We need a broader prospective, a spiritual prospective.”
According to Scheidler, that prospective starts with a doctor who values a human life and considers the fetus as a client. It also requires that mothers consider self-sacrifice.
“At least consider the possibility of sacrifice,” he advised. “That used to be considered a noble thing. Now people consider you insane when you talk about sacrificing yourself. At least consider the option of sacrifice even if that sacrifice is [no] treatment for the duration of the pregnancy for yourself.”
Of course, the article claims that there is no difference in birth defect rates for babies who were born from mothers undergoing chemotherapy than regular births. What the article fails to mention is that is only the case if the drugs are not taken during the first trimester. But perhaps that’s just a sacrifice the fetus should be expected to take, as well. After all, it’s the “noble thing” to do.
It would be wonderful if all pregnant women diagnosed with cancer had the ability to wait to have treatment, since the majority of those pregnancies are likely planned and wanted. But to advocate that doctors should always put the fetus first and then just hope that the mother can hold on until after it’s born to get treatment is unconscionable, and to call it the “noble” option is in no way “pro-life.”
The American Cancer Society recently released new guidelines, raising the minimum age of regular mammograms for women with no known risk factors from 40 to 45. While these guidelines may make sense when you look at population statistics as a whole, on an anecdotal level, they alarmed me as a 43-year-old.
For my 35th birthday, my gynecologist gave me a prescription for a mammogram. It was a little early, according to the American Cancer Society (ACS) guidelines at the time, but she believed a baseline mammogram was important so that radiologists would have something to compare it to in the future. When I hit 40, I got a new prescription from a new gynecologist, who told me that as someone with no other risk factors, from then on, I should get one each year.
I don’t find mammograms all that unpleasant, but I do find them scary because of the inherent “what-if-the-worst-is-true” factor: It’s easy to push it to the bottom of the to-do list instead, to instead ignore the possibility altogether.
Then I heard the story of a friend whose mammogram picked up her breast cancer. Like me, she’s 43, and she’s going through treatment now. It was enough to make me schedule the appointment. “What-if” is scary, but the prospect of having breast cancer and not knowing it is even scarier.
Just days after my all-clear results came in this time around, however, ACS released new guidelines, raising the minimum age of regular mammograms for women with no known risk factors from 40 to 45. The new recommendations are based on research showing early mammograms don’t save many lives and have the potential to cause false positives, unnecessary biopsies, and even unneeded cancer treatment.
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While these guidelines may make sense when you look at population statistics as a whole, on an anecdotal level, they alarmed me. As women in our early 40s, my peers and I were being bombarded with mammogram reminders as recently as last month. Suddenly, we’ve been told not to bother. In fact, we’re not supposed to screen for breast cancer at all (self-exams fell by the wayside years ago, and the new guidelines say in-office exams by doctors are not useful either). Yet, we all have friends our own age who have or have had breast cancer, and we’ve seen enough pink ribbons to remind us just how many more peers will get it in the next decades of our lives. Is it really safe to do nothing?
ACS’ new guidelines were released last month in the Journal of the American Medical Association (JAMA). They suggest that women who have a normal risk of breast cancer—that is women with no family history, personal history, known genetic mutations, or other diseases that could make breast cancer more likely—can wait until 45 for a mammogram, should get one every year until 54, and then start getting them every other year for as long as they’re healthy and likely to live for ten more years.
The organization also changed its stance on clinical breast exams, which it had recommended annually starting at age 40. The new guidelines do not recommend these for women of any age, unless they have symptoms or breast abnormalities.
But ACS is not the only organization that puts out guidelines on breast cancer screening. The American Congress of Obstetricians and Gynecologists (ACOG) has its own guidelines, which suggest women get a mammogram every year or two between 40 and 49, and annually after that. The National Comprehensive Cancer Center says women should start at 40 and get one every year after that. And, the United States Preventive Services Taskforce (USPSTF) currently says, somewhat vaguely, that the decision to start mammography before age 50 should be an individual one. The recommendations issued by these groups all have varying levels of impact and influence on the medical community, insurance coverage, and public opinion as a whole.
But all of that could be changing based on current research. ACOG told the New York Times that it was going to hold a meeting in January to discuss recommendations and that the ACS would be invited. In response to ACS’s new recommendations, USPSTF said that it would examine the evidence on the cost and benefits of mammography. That group’s statement did add, however, “There are health benefits to mammography screening for women in their 40s.”
Such cautious wording may be a result of a 2009 controversy, which happened when the USPSTF revised its breast cancer screening guidelines and actually recommended against routine mammograms for women under 50. This made a lot of people very upset, because women in their 40s do get cancer and the USPSTF’s opinion on screening tests impacts whether certain tests will be covered under the Affordable Care Act (ACA). The group walked those recommendations back and said instead that women in their 40s should work with their providers to make their own screening decision and then should have annual mammograms from 50 to 74. The USPSTF released a draft of updated recommendations in May and didn’t change anything.
All of these groups review the best available data to come up with their recommendations. However, the data varies widely, both in terms of methodology and potential for interpretation. So it’s not surprising that different experts arrive at different conclusions.
The Science Behind ACS’ Guidelines
Ruth Etzioni, a statistician in the ACS Guidelines Development Group (GDG), which came up with the new recommendations, explained in an interview with Rewire, “Screening as an approach has limitations because you have to screen everybody to save a relative few.” This means that determining whether it’s worth getting screened relies on looking at population trends as a whole. No one, for example, is suggesting that all women in their 20s get regularly screened, because breast cancer is so uncommon at that age. So the panel looked at the risk of getting breast cancer, the possibility of saving lives with screening, and the downfalls of the screening itself.
The data show that the risk of getting breast cancer in the next five years is only 0.6 percent for women ages 40 to 44; it jumps to 0.9 percent for women ages 45 to 49, and 1.1 percent for those 50 to 54. But it’s not simply the risk of getting breast cancer that the panel was looking at; it’s the risk of dying from it, a fairly typical framework of evaluating the efficacy of mammograms. Many of the studies the panel examined review whether mammography at a certain age can lower the risk of death from the disease. The ACS review acknowledges that it can. The article states, “For women of all ages at average risk, screening was associated with a reduction in breast cancer mortality of approximately 20 percent.” But the number of women who will get breast cancer in their early 40s, and the percentage of those who will die from it, is still so small that it might not be worth screening everyone every year, the ACS panel determined.
Another thing the panel took into account was potential downsides of mammograms. No one is suggesting that the x-ray itself has risks. Rather, it’s what happens next—false positives, anxiety, unnecessary additional tests, and over-treatment—that has some researchers concerned. Essentially, the ACS panel determined that the risks of mammography outweighed the benefits until age 45.
According to a 2011 study, 61 percent of women who have mammograms starting at 40 are likely to have a false positive by the time they’re 50. Starting later can cut this number down, as can getting mammograms every other year. Still, the USPSTF, for example, calculated that if 1,000 women follow its current advice and have mammograms every other year from 50 to 74, 146 of them will go on to have an unnecessary breast biopsy and 18 of them will be diagnosed and treated for a cancer that would have never harmed them, which experts call “overdiagnosis.”
An editorial accompanying the JAMA article calls the review an important step forward and notes: “There is uncertainty about the magnitude of mammography’s benefits and harms and how to select patients and screening strategies to optimize the balance between benefits and harms. In the face of such uncertainty, thoughtful, evidence-based guidelines can play a powerful role in shaping policy and practice, supporting decision making by clinicians and patients, and identifying key research priorities.”
The Correct Outcomes
But some medical professionals question the new recommendations. John Cunningham, a breast surgeon with Summit Medical Group in New Jersey, told Rewire that he worries many of the standards and definitions used to judge whether widespread breast cancer screening is effective may not be giving us the right answers.
First, he explained: “I think mortality is the wrong end point. It’s hard to prove to the end result of mortality when there are so many things in between—like the course of treatment—that alter reduction of mortality.” In other words, it’s unfair to hold mammography solely responsible for saving lives, or not doing so, when the decisions made after a cancer is detected—such as how aggressively to treat it—may have more impact on a woman’s survival. Cunningham thinks that a screening test can be considered successful if it finds the disease it is screening for.
In addition, he thinks some of the additional tests that are run after something potentially suspicious is spotted on a mammogram are necessary. For the purposes of the research reviewed by ACS and other groups, every biopsy that comes back as benign is considered a false positive. Dr. Cunningham thinks this unfairly inflates the rates of false positives because sometimes biopsies find something else. “My feeling is that if it finds anything that is pathologically different than normal breast tissue it is not a true false positive,” he said. Even if it’s not cancer, it could require additional treatment, including surgery, or it could help indicate women who might be at a higher risk of developing cancer in the future.
As for overdiagnosis, or the treatment of cancer that would not have hurt patients, Cunningham thinks this label is used too much as well. Most women who fall into this category have something referred to as DCIS, ductal carcinoma in suti, which are tiny growths in the milk ducts. These may or may not become invasive cancer. Cunningham explained: “There are some patients with DCIS who would probably digress to invasive cancer if left long enough, but we don’t know whether that would be a year, ten years, or 20. Since we can’t quantify that, I don’t think we’re over-diagnosing. It’s appropriate. Then we have [to] decide what should be the management.”
Are These Results Really Harmful?
Cancer treatments are unpleasant at best and debilitating at worst. No one wants to be treated for a cancer that they could simply live with, but given that we don’t yet have the tools to know for sure which cancers will and will not become life-threatening, or how long that will take, some women might choose treatment as the lesser of two evils. Similarly, the panel points to anxiety as one of the harms that comes from false positive tests. Certainly, the days or weeks spent between hearing that your mammogram wasn’t perfect and ultimately finding out that you don’t have cancer are going to be anxious times, but many women might feel it was worth it to know for sure.
Etzioni said she understood that this argument, but thinks women need to have more information about breast cancer and what it takes to screen everyone. She told Rewire that when it comes to individual’s health, “Breast cancer is only one of the things that we have to monitor for, and we need to have perspective. It’s not like taking your pulse or your blood pressure—mammograms, ultrasounds, MRIs, biopsies—everyone coming in to get these, it’s a huge endeavor.” And it makes sense to focus that endeavor on those most at risk. Etzioni added, “Breast cancer is just not a huge risk in your 40s.”
It is true that in absolute numbers you have to screen a lot of people to save very few; approximately five of 10,000 women in their 40s and ten of 10,000 women in the 50s are likely to have a breast cancer death prevented by regular mammography. And though mammograms are relatively inexpensive tests to conduct, nothing is inexpensive when applied to a whole population. Many experts believe that this is just not the best use of our limited health-care resources.
Outlying Stories Are Scary, But Not Typical
This argument makes a lot of sense until it comes down to the individual level—some women do get breast cancer in their 40s and do find out about it through mammography. Take the friend I mentioned in the beginning, Rachel.
“I felt something,” she said to me last week, “in the shower and thought that does not feel normal.” Rachel, like other women my age, was taught to perform self-examination once a month by standing in the shower with one arm over your head and making gentle circles all around each breast. This practice is not taught anymore because research suggested it led to false positives but didn’t necessarily save lives. Still, people our age often do it, and for Rachel it turned out to be important.
Her annual exam with her gynecologist was scheduled for the following week, so she waited and pointed it out to her doctor. The doctor didn’t feel it and said there was nothing to worry about. But Rachel was worried. Luckily, she said, she had already scheduled her annual mammogram because, at 43, she’d been following the old guidelines and was ready for her third exam.
Within half an hour of her mammogram, Rachel got a call recommending further tests, an ultrasound, and another mammogram. Ultimately, a needle biopsy confirmed that the lump was a malignant tumor.
Rachel has since had a lumpectomy and one round of chemotherapy. She’s starting another round of chemotherapy soon because they found some cancer cells in her lymph system. She has an amazing attitude about the whole thing and seems to spend no time wallowing in the “why me.” She was shaken, though, when she heard about the ACS’ new guidelines: “I was shocked and quite frankly really disappointed that the ACS would go on record suggesting that people would wait that long. If I’d waited two years, I would be terminal because that’s how aggressive this was.”
Of course, Rachel is an outlier. And as scary as her story is, it’s far from typical. Remember, there’s only a 0.6 percent risk of getting breast cancer in the next five years for someone her age.
What’s a 43-Year Old to Do?
None of the guidelines—whether they’re from ACS, ACOG, or USPSTF—are binding. Women are free to decide when they start getting mammograms and how often they get them. In fact, the newest guidelines from most of these groups encourage women to work with their providers and make their own decisions. And no one expects the ACA, which takes multiple groups’ guidelines into account, to stop covering mammograms for women in their early 40s.
I’m a cautious person who is prone to dwelling on mistakes. I would gladly exchange a few false positives for the peace of mind that knowing my breasts are fine from year-to-year will bring me. But not all women feel that way. My friend Catherine, who works in public health, said she’s refused mammograms thus far despite the recommendations of her gynecologist. She told me, “I’ve had a ton of radiation in my life, I have a lot of test anxiety, and I have no history of breast cancer in my family. So given the numbers, I’m going to wait until I’m 45.”
Many women will likely do what their own provider recommends, and Cunningham said it’s unlikely that health-care providers will change their advice based on the ACS guidelines. If the medical expert community, including ACOG or the USPSTF follows suit, however, that shift may trickle down.
Cunningham, for one, said he will continue to recommend mammograms beginning at age 40. He pointed out: “ACS’ own discussion says there’s no question that screening mammography reduces mortality—we just can’t quantify how much it reduces mortality but it could be as high as 20 percent. How can you say that’s not beneficial?”
In fact, he said of the JAMA article, “I read it and I think you could come up with your own conclusion. My own conclusion is you just proved to me I should be doing it more.”
One thing that everyone seems to agree on is the need for tests that are more accurate than mammograms, and new ways to determine risk factors so that those tests can be targeted at women most likely to get breast cancer. Unfortunately, these may be years away. And for now, many women, and even health-care providers, are confused.
Etzioni said, though, that this could be a good teachable moment. “People don’t understand the point that screening has limitations and they have a lot of anxiety” about cancer. This, she said, is “understandable, but this is a great opportunity to educate people.” She added, “The guidelines provide guidance and control to do what they feel will work best for them.”
"It's ironic and stunning that, on the one hand, we’ve seen incredible progress for women, yet on the other hand, they’re inundated with little bits of discrimination and people don’t really realize it," said Jenny Schwartz, partner at Outten & Golden, a national employment law firm.
Shortly after receiving a diagnosis of Stage 1 breast cancer in 2012, Janice Page of San Diego was surprised when her boss told her that she should file a claim for workers’ compensation—payments from an employer to compensate a worker who suffers a job-related injury. Page, a county sheriff and first responder to chemical fires, explosions, gas spills, and other emergencies, didn’t know much about it. Still, she took her employer’s advice, and when her state-appointed doctor determined that her cancer would not qualify her to receive any workers’ compensation, something felt off.
Page contacted an attorney, and learned that if she’d been a man diagnosed with prostate cancer, she’d automatically be entitled to substantial benefits.
“I don’t think it’s fair at all, and it’s not right,” said Page, who recently testified to California Assembly members about her experience when the assembly was considering new legislation to ban gendered assessments in workers’ compensation claims. She’d undergone multiple surgeries, a mastectomy, and reconstruction as a result of treating her cancer. “I don’t want another woman to have to deal with what I’m dealing with.”
Despite Page’s story, and evidence that more than 9,000 claimants annually would be affected by this change in the law, California Gov. Jerry Brown vetoed the legislation—called AB 305—on October 6, cowing to pressure from corporate and compensation insurance industry lobbyists threatened by the possible added protection to injured workers. The bill’s veto serves not only as a strike against women, but also a convenient strike against workers in the escalating corporate war on workers’ compensation.
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Introduced by Assemblywoman Lorena Gonzalez (D-San Diego) in March, AB 305 would have amended California’s labor law as it involves state-hired doctors who evaluate workers for workplace compensation claims. Under three amendments, the bill would bar doctors from factoring gendered medical conditions of menopause and pregnancy into their evaluations of an injury when those conditions had no proven impact on their injury. Doctors could also not factor in workplace sexual harassment, menopause, or pregnancy to the case of a worker who suffered a workplace psychiatric injury if that injury arose at the same time of the harassment, menopause, or pregnancy. Finally, it would have forced doctors to rate prostate and breast cancer equally in their evaluations.
Gonzalez and the bill’s supporters, including the California Democratic Caucus, workers’ groups, and many of the state’s women’s groups, believe the administration’s denial reflects a greater war on women in the workplace. While workplace discrimination such as this hardly resembles the explicit forms faced by women workers in the past, it still manifests in various ways, including in workers’ compensation decisions, said Jenny Schwartz, partner at Outten & Golden, a national employment law firm.
“It’s ironic and stunning that, on the one hand, we’ve seen incredible progress for women, yet on the other hand, they’re inundated with little bits of discrimination and people don’t really realize it,” Schwartz said. “In order to achieve gender equity in the workforce, the whole point is to diligently attack each and every occurrence which is perceived to be a smaller type of discrimination. It’s a bit like whack-a-mole.”
AB 305 inspired a heated “boobs and prostate debate” among lawmakers and pundits, as the bill would require workers’ compensation doctors to rate the diagnosis of breast cancer and prostate cancer equally. Under current California law, which is based on a system of guidelines by the American Medical Association (AMA), workers with prostate cancer resulting from their work conditions receive a 16 to 20 percent disability rating. Workers diagnosed with breast cancer “of childbearing age” only receive a 5 percent rating and those of “non-childbearing age,” like Page, have a 0 percent rating, said Christel Schoenfelder, workers’ compensation attorney at Rose, Klein & Marias LLP and president-elect of the California Applicants’ Attorneys Association.
“Imagine a 60-year-old female firefighter who’s been fighting fires and been in the front lines,” Schoenfelder said. “She’s diagnosed with breast cancer and it’s related to toxic exposure. When the doctor goes to calculate her percentage of permanent disability, she’d get nothing, because she’s not a woman of childbearing age. Now, in the same situation, but a man [with prostate cancer], he gets 16 percent to 20 percent. If he’s incontinent, he gets another percent increase. If sexual dysfunction, another.”
To AB 305 supporters, this gendered distinction indicates that AMA guidelines only value breasts in the context of child-rearing; they have no other purpose, and in turn, their loss has little effect. It ignores the side effects of breast cancer and mastectomies, Page said, including physical pain, numbness, reduced range of motion, psychological anguish, post-traumatic stress disorder, and loss of sense of self and identity.
“If a man had his balls removed and had plastic ones put there, how would he feel?” Page said. “If they had been removed, I’m sure it would be psychologically [damaging] to them, too.”
AB 305’s second proposed change to the California labor code sparked far less excitement, but the need behind it feels equally infuriating to supporters. Under current state workers’ compensation law, a person who cannot work at all because of the job injury is considered permanently disabled. State-appointed doctors examining a woman worker who has been injured are entitled to credit—or apportion—some of their injury to menopause and pregnancy, even if that person never felt any side effects or health problems from these conditions before their on-the-job injury, Schoenfelder said. In turn, these women receive less compensation from their employer. In other words, male workers facing certain injuries would receive full benefits, but injured women workers would automatically have their benefits reduced if it is possible their injury results from menopause or pregnancy, even if there is no indication of these conditions. AB 305 would forbid doctors from apportioning injuries to these conditions. It would also prevent them from factoring in psychiatric disabilities caused by these conditions, and sexual harassment resulting from these conditions.
“It’s when something is asymptomatic, and maybe the person doesn’t even know she has it, and it hasn’t even hampered your job,” Schoenfelder said. “These are not actual causes [of an injury], but risk factors. That’s what makes it discriminatory.”
Schoenfelder, rifling through files in her office during one recent phone call, read aloud from one report from 2014 where a doctor evaluated a worker with “common gender nonoccupational risk” and reduced her rating by 20 percent. In another 2015 report of a worker with a shoulder rotator cuff injury, she said, the doctor observed “calcium deposits in a rotator cuff,” but blamed 50 percent of it on “genetic predisposition,” as women are more likely to have such deposits. Then 50 percent of her disability was reduced.She added that other reports include doctors tying workplace injury symptoms to pregnancy and breastfeeding, even when symptoms occurred before workers became pregnant.
“I have never seen a report where a doctor has specifically said, ‘men get this more often, so I’ll apportion about 50 percent because I know statistically men get this more,'” Schoenfelder said. “When conditions cited by doctors are exclusive to women, then it becomes that being female is a preexisting condition.”
Gov. Brown rejected this thinking, however, claiming that these sorts of evaluations are valid. He wrote in his “veto message” that AB 305 “is based on a misunderstanding of the American Medical Association’s evidence-based standard, which is the foundation for permanent disability ratings, and replaces it with an ill-defined and unscientific standard.”
It’s a curious position, given that doctors in California and many other states make these evaluations based on the AMA guidelines, which is an inherently man-made system. Individual body parts receive greater “worth” and compensation, with required surgeries and “hardware” earning more. (Other states, including New York and Florida, have created their own system to evaluate disability.)
“That system is not really all that scientific to begin with,” said Julius Young, partner at Boxer & Gerson, LLP in Oakland, explaining that the guidelines are built around a conception of ‘whole person impairment” and ability to perform daily life activities with a certain injury, and this is given an arbitrary percentage. “[Brown’s] saying that it’s undefined and unscientific is a little ironic. People who were putting these things together maybe didn’t believe in certain conditions. They probably didn’t think about women losing their breasts. [It’s] changed over time with different editions.”
Young, who followed AB 305 since its introduction at his blog WorkersCompZone.com, believes the veto makes sense in the current California political climate around workers’ compensation. After a spike in workers’ comp claims in 2003, he explained, the state passed some reforms that were quite popular with insurance providers. Under those reforms, a doctor was required to express an opinion of all the possible causes for injury. This led to doctors “splitting up a pie,” as Young explained, for example, attributing one-third of the injury as a direct result to what happened while on the job, one-third to a prior injury, and one-third to aging process and osteoporosis. Subsequent rising costs, however, led to greater reforms in 2012, but no one remains satisfied.
“It’s really an issue that keeps coming back,” Young said. “[And I think] Jerry Brown doesn’t want to see this [workers’ compensation bill] become a front-page issue.”
The veto, then, represents another strike by businesses in their campaign against workers’ compensation.
“Employers are doing everything they can to reduce costs of workers’ comp,” said Paula Brantner, executive director of Workplace Fairness, a nonprofit public education and advocacy organization that provides workers’ rights information. “If they can screw their workers, keep wages flat, keep benefits flat, cut health care, they will,” she said. To fight it, advocates and workers must step forward and bring the most egregious examples to light.
Left to Fend for Themselves
States nationwide have slashed workers’ compensation benefits within the past ten years, according to a recent ProPublica and NPR investigation of insurance industry data, state laws, and court and medical records. Employers pay less in compensation today than any time in the past 25 years, and California and Oklahoma tied for the most cuts since 2014, the study found. Federal workers’ compensation mandates put in place in 1972 are mostly dissolved: Gone are the years where injured workers could pick their own doctors, receive compensation for all the years of their disability, or, if they died due to their injury, ensure that their spouses would receive death benefits until remarriage and their children would receive tuition benefits through college graduation.
According to the ProPublica study, legislators from California, West Virginia, North Dakota, and Oklahoma have imposed two-year time limits on claims made by temporarily disabled workers, even if they still cannot work after those two years. In another ProPublica investigation that NPR released in October, Oklahoma and Texas—and possibly soon Tennessee and South Carolina—have passed laws allowing employers to “opt out” of workers’ compensation completely. Employers then create their own workplace injury plans, which, according to the investigation, “generally cover fewer injuries, cut off benefits payments sooner, control access to doctors and even impose mandatory settlements.” Employers in those states, including Costco, Taco Bell, and Sears, have “opted out” of workers’ compensation to create their own plans when workers become injured. Under their opt-out plans, employers may refuse to cover the cost of basic injuries, like work-related infections, and deny benefits if injuries are not reported within the same shift when the injury occurs, preventing workers from making a claim if they only realize later on the full scope of their injury. They also require that company representatives accompany injured workers to doctor’s appointments so as to monitor or interpret what doctors say. Even worse, these plans do not provide an option to appeal to a third party or court, unlike in the current system, which has due process protections built in. Opponents consider it a return to the Industrial Revolution “when workers and their families had to sue their employers or bear the costs of on-the-job injuries themselves.”
Workers receiving less are now turning to welfare and other government programs, including disability benefits through Social Security, which opponents to these plans argue puts a greater burden on the government, and in turn, taxpayers. Today, families and their own private health insurance pay for about 63 percent of their lost wages and medical costs of work injuries, while workers’ compensation payments covers only about 21 percent of lost wages and medical costs of work injuries and illnesses, according to a 2015 study by the U.S. Department of Labor’s Office of Safety and Health Administration. Taxpayers cover the rest. In addition, 97 percent of workers with occupational illnesses receive no compensation, mostly because doctors do not diagnose them as work-related.
Left to fend for themselves in court based on the current law, many injured women workers could not effectively challenge workers’ compensation decisions for their injuries when doctors unfairly factored in menopause, pregnancy, or sexual harassment, or minimized their breast cancer. They typically must hire an attorney. But not all workers can afford legal help, leaving these individuals to face discrimination at a disproportionate disadvantage.
“Any employee in California can be subjected to the workers’ comp system at any moment,” Schwartz said. “If you’re poorly educated or from a lower socioeconomic group, or struggling with economic issues, and you’re not represented by counsel, you’ll have to accept what happens through the system.”
CORRECTION: A previous version of this article misspelled the Workplace Fairness executive director’s name. It’s Paula Brantner, not Branter. We regret the error.