"...the law is “murky” when it comes to what constitutes “valid apportionment.This means that the real question, in a technical sense, is, ‘What caused the actual disability?’” he said. “In its purest form, one cannot make a determination of true cause of a disability if you simply blame it on risk factors, or what the medical literature states generally.” Alan Gurvey
Published on 07/08/2016 by WorkCompCentral, authored by Greg Jones
Department of Industrial Relations Director Christine Baker rejected claims that gender discrimination is rampant in California’s workers’ compensation system and said a lawsuit alleging widespread bias against women could be part of an effort to undo successful reforms.
Baker said a group of lawyers who filed the class action complaint Wednesday requesting a court order directing the department to take steps to eliminate and prevent discrimination against injured women first requested those changes in an April 20 letter to her agency. Baker said the DIR takes allegations of gender discrimination seriously and investigated examples cited in that demand letter.
“The examples did not support the inflammatory accusations of systemic gender bias in California’s workers’ compensation system, and we requested more information from plaintiff’s counsel to substantiate their claims,” Baker said in a statement released Wednesday evening. “Rather than responding to our invitation and presenting concrete evidence to demonstrate the existence of systemic gender discrimination, the plaintiffs instead filed a lawsuit containing sweeping allegations that are misleading and superficial.”
Baker also said she could “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.”
Public Counsel, a Los Angeles law firm that convened a press conference Wednesday to announce the filing of its lawsuit, did not respond Thursday to requests from WorkCompCentral.
The complaint filed in the Los Angeles County Superior Court alleges the DIR and subordinate agencies including the Division of Workers’ Compensation and the Workers’ Compensation Appeals Board failed to prevent — and in some cases contributed to — discrimination against women who are injured at work.
The complaint alleges the state does not properly train qualified medical evaluators and allows them to apportion permanent disability awards to risk factors including gender or female reproductive biology. It also claims the use of the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment as part of the Permanent Disability Rating Schedule perpetuates discrimination against women because it assigns a lower rating to breast cancer and its consequences than it assigns for prostate cancer and its aftereffects.
A bill pending in the Senate, Assembly Bill 1643 by Assemblywoman Lorena Gonzalez, D-San Diego, would prohibit apportionment based on pregnancy, menopause, osteoporosis or carpal tunnel syndrome. And it would require that the impairment rating for breast cancer be no less than comparable ratings for prostate cancer.
Gov. Jerry Brown vetoed a similar bill last year. Gonzalez convened an Assembly Select Committee on Women in the Workplace Hearing to try to dispel the notion that impairment ratings are inherently scientific, as the governor said in his veto message.
Following that Feb. 23 hearing, the California Applicants’ Attorneys Association held a luncheon during which attorneys from Public Counsel talked about filing an equal-rights lawsuit if the governor did not sign Gonzalez’s bill this year.
Baker addressed claims of gender discrimination in a June 3 letter to the attorneys who filed the complaint. She said the AMA Guides do not provide direct ratings for breast cancer or prostate cancer, and instead rate specific impairments a worker may experience as a result of those diseases.
The rating for mammary gland disorders is gender-neutral, and the guides initially assign a whole person impairment rate of 0% to 5% for both men and women who undergo the removal of a breast, Baker says in the letter. But rating physicians can also look at other consequences of surgery or treatment and increase the final impairment rating. In a hypothetical example, Baker says an injured worker who undergoes a single mastectomy due to breast cancer may start with a rating of 3%, but skin disfigurement could result in a separate 9% rating, residual pain another 3% and loss of shoulder motion could add another 4%, leading to a combined whole person impairment of 19%.
“It should be noted that the WPI ratings assigned in this illustration do not reflect the maximum potential impairment ratings for each of these classifications; again, the AMA Guides require ratings tailored to the clinical assessments of a specific injured worker’s objective impairments in performing activities of daily living, rather than generalized and inappropriate assumptions concerning women,” Baker said.
Continuing, she said analogizing the rating for the removal of a breast to the rating for removal of a prostate is a “false comparison” because the organs do not perform the same physiological functions. Suggestions that they should be rated the same ignores the gender-neutral medical evaluations upon which disability ratings are based, she said.
On the issue of apportionment, Baker said determinations based solely on risk factors associated with specific genders or gender-based stereotypes are not allowable. She said the department is not aware of any empirical data showing “widespread uncorrected errors” resulting in discriminatory impacts on women in thousands of apportionment determinations that have been issued over the last decade.
“We are troubled, however, by your anecdotal descriptions of cases in which injured female workers have suffered unfair treatment based on impermissible apportionment determinations,” Baker wrote. “Significantly, California’s workers’ compensation law prohibits the sort of improper apportionment determinations made in the two examples cited in your letter: (1) where the physician determined that the arthritis was attributed in part to 'the risk factor of the female gender' and (2) where a worker with carpal tunnel syndrome experienced reduction of permanent disability benefits due to apportionment to 'nonindustrial predisposing conditions such as the female gender, age, postmenopausal status and obesity.'”
Attorneys say efforts to determine what percentage of a disability is caused by the occupational injury and what is caused by other factors is not a precise science. But they also say case law has established the fact that someone is predisposed to any given condition is not allowed.
Alan Gurvey, an applicants’ attorney and managing partner of the Law Firm of Rowen Gurvey & Win, said the law is “murky” when it comes to what constitutes “valid apportionment.”
The WCAB’s 2005 en banc decision in Escobedo v. Marshalls established that that apportionment must be based on causation to disability and not causation to injury, which was the standard prior to SB 899, he said.
“This means that the real question, in a technical sense, is, ‘What caused the actual disability?’” Gurvey said. “In its purest form, one cannot make a determination of true cause of a disability if you simply blame it on risk factors, or what the medical literature states generally.”
For example, medical literature says there is a link between being overweight and developing hypertension or diabetes. But not everyone who is overweight will have high blood pressure or diabetes. And not everyone who has high blood pressure or diabetes is overweight.
Gurvey said it would be “unfair” to apportion disability just because an applicant is overweight. But apportionment could be valid if there are records indicating that the person was suffering from high blood pressure prior to the occupational injury.
“So the key here on ‘unprotected classes’ is that in order to have valid apportionment, one cannot simply use medical literature to apply to a specific case, unless there is absolutely no other basis to address causation,” he said. “That is, in order to find apportionment there should be some verifiable and provable medical indication regarding that specific person, rather than just a generalization.”
Richard “Jake” Jacobsmeyer, founding partner of work comp defense firm Shaw Jacobsmeyer Crain & Claffey, said a predisposition to a given condition is generally not enforceable when it comes to apportionment.
“The question I always ask physicians is, in the absence of this pre-existing condition, would the residuals from this injury be the same?” he said. “If the answer is they would be identical, there’s probably no basis for apportioning. The injury is the cause. If the doctor says the pre-existing condition makes the injury more devastating and significant, there’s a basis for apportionment.”
Jacobsmeyer said he doesn’t think it’s currently lawful to apportion carpal tunnel just because a claimant is a woman despite the fact that there is literature suggesting women are more likely to develop the condition.
For example, the Office on Women’s Health at the U.S. Department of Health and Human Services says women are three times more likely to have carpal tunnel syndrome than men.
He said the California 3rd District Court of Appeal is currently reviewing a case involving a similar issue of an injured worker’s genetic predisposition to developing degenerative disc disease because of his family history.
Christopher Rice, a police officer in Jackson, had an admitted cumulative trauma injury to his neck. A qualified medical evaluator apportioned 49% of his disability to the fact that his father had a significant history of back and hip problems, suggesting degenerative conditions ran in Rice’s family.
The WCAB in January 2015 said the disability should not have been apportioned at all because the QME assigned causation to “genetic makeup and not to specific debilitating factors” that caused the current level of disability.