Are You A Woman That Was Injured On The Job In California? Your Gender May Affect Your Case

Law Blog

If you're a woman in California who gets injured on the job, you may have a tougher time getting workers' compensation benefits than your male counterparts—simply because the system seems to be biased against you. This is what you need to know about gender bias in California workers' comp claims.

Workers' comp insurers may decide that your injury isn't much of an injury at all.

If you're a woman past childbearing age who develops breast cancer as a result of your exposure to carcinogens while you're on the job, don't expect workers' comp in California to compensate you. The American Medical Association guide used by California to assign disability ratings to different conditions says that your breast removal is 0% disabling. If you're of childbearing age, it considers you up to 5% disabled. By comparison, a man who develops prostate cancer and has his prostate removed is considered 6%-20% disabled.

An attempt to introduce a bill that would prohibit insurers from treating primarily female disabilities different from primarily male disabilities failed because California Governor Jerry Brown said that the bill was unscientific. The decision to veto the bill noted the physicians have some "flexibility to use other parts" of the AMA guide when rating the disability.

Workers' comp insurers may also decide that your injury is really related to your gender.

Similarly, women in California have seen their workers' comp benefits arbitrarily reduced based on their gender. When workers' comp insurers decide how much to pay on a claim, they're required to divide up the condition into a percentage that indicates how much of the condition is due to other factors, like preexisting conditions, and how much is due to the actual work. This is a process known as apportionment, and it's being used to unfairly equate being female with a preexisting medical condition.

For example, insurers have used the apportionment process to reduce women's disability benefits by as much as 80% by claiming that things like work-related depression are mostly related to gynecological issues and perimenopause. A woman suffering from carpal tunnel syndrome was told that virtually all women in her age group had the disorder. A housekeeper who was severely injured while moving a bed was told that only 2% of her condition had anything to do with the job—the rest was attributed to factors like childbirth and age. 

Disabled women workers are fighting back with attorneys and lawsuits.

If you're denied fair compensation for your injuries due to an apportionment that relies on female gender stereotypes or the association of your reproductive system with a disability, you don't have to accept the decision without a fight. There's currently a lawsuit pending on behalf of several women who have found themselves discriminated against. More lawsuits may follow.

In the meantime, however, you can file an appeal on the issue of how your workers' comp claim was apportioned. Your attorney can work with your physician to get a better description of your disability and a clearer explanation of how it relates to your job, not your gender. For more assistance, consider contacting an attorney in your area today.

18 July 2016