Analysis Health Systems

How Workers’ Comp Policies Leave Women to Fend for Themselves

Jean Stevens

"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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AB 305 and Its Implications

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, 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.

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