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Business & Economics
California Workers’ Compensation: A Flawed System?
The workers’ compensation system around the nation has been complicated for decades. Particularly in California, a measure from the early 2000s is now coming to light as more and more women are trying to get workers’ compensation. There’s a battle raging over whether or not there’s an inherent gender bias in the handling of workers’ compensation claims in California; the concern is that women who try to get workers’ compensation are “penalized” for gender-related conditions like pregnancies and menopause. Read on to learn about the gender bias in worker compensations claims in California, what’s being done, and a look at the discussions happening in other states.
What is workers’ compensation?
Workers’ compensation is a form of insurance provided in the workplace that can consist of wage replacements and medical benefits for employees who were injured while working. Usually by accepting these funds, employees acknowledge that they will not sue their employers for negligence. Workers who are permanently disabled while on the job receive compensation from insurers based on a calculation of the level of disability and what portion of the injury is linked to their jobs. Insurers may also weigh the worker’s previous health conditions or prior injuries. In California specifically, the process is overseen by the Division of Workers’ Compensation which:
Monitors the administration of workers’ compensation claims, and provides administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits.
DWC’s mission is to minimize the adverse impact of work-related injuries on California employees and employers.
State of Workers’ Compensation
If you were to look at the statistics, it looks like fewer and fewer people nationwide are getting hurt at work, though that isn’t exactly the case.
A report came out recently about how the system is reporting very low numbers. The real reason? Changing the circumstances for what qualifies as a workplace injury, and the simple dissolution of programs that pay for such accidents. According to the Washington Post, the number of people injured at work is probably twice what is reported because people fear losing their jobs. Or people, like those in the construction industry, are misclassified as independent contractors.
The Washington Post recently discussed the national state of workers’ compensation problems, saying:
Since 2003, the investigation found, 33 states have weakened their workers’ compensation regulations, scaling back the procedures that will be covered and the duration for which benefits are offered. In addition, while businesses often push for reforms on the grounds that workers’ compensation costs are out of control, data shows that premiums are lower than they’ve been at any point since the early 1990s.
California’s Belabored Workers’ Compensation Program
Workers’ compensation programs have received complaints that they are inherently flawed throughout the United States. Lately the debate has been particularly focused in California. Complaints come from the fact that outside medical reviewers look at the cases and after brief exams or only by reading the medical records can deny recommended treatments or rule that injuries aren’t work-related.
Reform Under Governor Schwarenegger
Some problems with the California system can be traced back to a bill that reformed the program, which was signed in 2004 by then-Governor Arnold Schwarzenegger. It changed what types of injuries qualified under the program, how long certain employees would receive coverage after being injured, and required the injured employees to choose from a specific pool of independent doctors. At the time, Schwarzenegger said:
This bill completes a process that brought together Republicans and Democrats, business and labor, and all the affected parties to produce billions of dollars in savings, protect workers, and root out fraud and waste in the system. No longer will workers’ compensation be the poison of our economy. Our message to the rest of the country and the world is that California is open for business. We are making our state once again a powerful, job-creating machine.
At that time, California employers were paying the highest workers’ comp rates in the nation: $6.33 for every $100 in payroll, compared to a national average of $2.46.
Although the bill was supposed to save Californians money, there were some problems with it. The new bill made it more difficult for workers to get in to see doctors and left them waiting for months without any answers to their problems.
Reform Under Governor Brown
In 2012, Governor Jerry Brown put some of the power back in the hands of the state, deciding that disputes should be handled by independent medical reviewers whose decisions cannot be overturned. The law was a bit quirky, as this didn’t just apply to the new cases, but also retroactively to past requests, and it impacted everything from already-scheduled doctor’s visits to prescription refills. In some cases, treatments were stopped in the middle with little more than an official notice.
This new system also has problems, however, as in recent years reviewers have denied treatment in up to 91 percent of the cases. People who were receiving treatment for years suddenly found themselves left out in the cold, and many had to return to work to continue to pay for the medication they needed.
Christine Baker, who oversees workers’ compensation in California, has stated that the reform is “speeding up the decision making process” and taking the aid away from people who are using it for prescription abuse.
Many of the judges, including John C. Gutierrez, a workers’ comp jurist since the 1980s, are some of the biggest adversaries of the law. According to Gutierrez, “the only interest that’s being protected here is industry and I feel that their financial influence has had an impact on how this legislation came out.” He went on to say that he felt like workers “are losing their voice.”
This is a problem in the state regardless of gender, but when it comes to comparing women and men, there is an even bigger problem looming.
Gender Bias in Workers’ Comp Rulings
California Assemblywoman Lorena Gonzalez introduced a bill (AB305) on March 4, 2015 that aims to eliminate the gender bias in workers’ compensation rulings.
This comes after a Bay Area woman who suffers from Carpal Tunnel Syndrome, which damages the nerves in the hands and often limits movement, was denied workers’ compensation for a strange reason: she was postmenopausal, which meant that she was predisposed to nerve damage.
The woman enacted the help of attorney Sue Borg who says that she sees many cases where a woman who is injured on the job and files a claim for compensation is “penalized” for things like pregnancies and menopause. “It seems like it should be obvious that we shouldn’t see this, but it happens in insidious ways all the time,” Borg said.
Gonzalez aims to ensure that being female does not constitute a preexisting condition, and hopes to stop the reduction of compensation for female workers based on pregnancies, breast cancer, menopause, osteoporosis, and sexual harassment. All of this discrimination is happening, even though there are laws against gender discrimination in the workplace.
Breast Cancer
One of the biggest problems facing women seeking workers’ compensation is breast cancer. There have been numerous reports of how breast cancer is treated among firefighters and police officers. According to the Corporate Counsel:
Gutierrez reports that the bill’s supporters claim gender bias in workers’ compensation is a big issue, and one that is “especially evident in the way breast cancer is treated among firefighters and police officers.” For instance, female police officers who have to undergo double mastectomies for breast cancer linked to hazardous materials on the job are considered 0 to 5 percent disabled, Gutierrez reports, whereas a male officer with prostate cancer is considered 16 percent disabled and would be paid for the injury.
One such case involves a San Francisco firefighter who was denied permanent disability after having to undergo a double mastectomy, as well as an Orange County hotel housekeeper who was injured on the job but only received two percent payment on her claim–despite doctors putting her disability level at 100 percent–due to prior conditions “related to childbirth, obesity, age and naturally occurring events.”
Pregnancy
Pregnancy has always been a fairly controversial issue when it comes to the workplace, but many women are now being denied workers’ compensation due to it, or facing claims that it is the “cause” of the problem. Things like back pain, muscle strain, and injuries caused by fatigue have all been attributed to pregnancy and not the workplace. “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.
State Fires Back
The claims were immediately disparaged by the Workers’ Compensation Action Network, which said that payment decisions were never a result of discrimination. According to the Sacramento Business Journal: “A spokesman from Industrial Relations could not immediately produce data on gender-related bias or discrimination, but the agency will look into the matter and respond with its findings.”
Conclusion
The nation, and particularly California, has a lot of work to do in the coming months to try to look at reports and see if there is a problem. If there is, it could mean an inundation of old cases that may be able to be retried, meaning companies could owe a lot of money to women all over the state.
Surely California is only the beginning and more and more states, as well as the federal government, will have to look at their workers’ compensation laws and see if there are problems lurking in them. In the end, the people who don’t get covered by workers’ compensation won’t always work through their pain; many will end up on government subsidies, which means that the tax payers will have to cover the costs.
Resources
Primary
Department of Industrial Relations: Division of Worker’s Compensation California
Department of Industrial Relations: A Guidebook for Injured Workers
Additional
Corporate Counsel: Charges of Gender Bias in Workers’ Compensation
NPR: Injured Workers Suffer as ‘Reforms’ Limit Workers’ Compensation Benefits
Heartland Institute: Schwarzenegger Signs Workers Comp Reform
The New York Times: A Racy Silicon Valley Lawsuit and More Subtle Questions About Sex Discrimination
SF Gate: Gender Bias Rampant in Workers’ Comp Cases, Women’s Groups Charge
ProPublica: The Demolition of Workers’ Comp
NPR: As Workers’ Comp Varies From State to State, Workers Pay the Price
Property Casualty 360: California Workers’ Comp Bill Passes Legislature; Insurer Groups Cautious
BradBlog: Schwarzenegger’s Workers’ Comp ‘Reform’ Killed My Client
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