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Posted on: Feb 28, 2017

By: Christel Schoenfelder, President


Another year, another bill to eliminate gender bias in California's workers' compensation system.

Although AB 305 successfully passed the Assembly and Senate last year with bipartisan support, the Governor vetoed the bill. The Governor's veto message indicated the bill was a misunderstanding of the AMA Guides.

As a direct result of that veto message, author of AB 305 Assemblywoman Lorena Gonzalez—who also chairs the Assembly Select Committee on Women in the Workplace—held a hearing at the Capitol earlier this year to evaluate the scientific basis for breast cancer ratings under the AMA Guides. And what a hearing it was to challenge the veto message!

The committee learned from Julius Young about the unscientific basis for breast cancer ratings in the AMA Guides. A moving discussion about the physical, emotional and sexual consequences of breast cancer were vividly discussed by psychologist and breast cancer survivor support facilitator Cass Brown Capel and internist and head of a Breast Clinic in the Kaiser Surgery Department Claudia De Young.

Most notably, veterans attorney Katrina Eagle provided a revealing story about the current breast cancer rating in the VA system. She indicated the VA took a closer look at breast cancer ratings for veterans when men developed breast cancer at Fort Lejeune due to water contamination. Under the VA system, breast cancer is 100% disability while the cancer is active, then a single radical mastectomy is rated at 50% disability and bilateral radical mastectomies are rated at 80% disability. Sue Borg, her client who is a breast cancer survivor, and I then explained the paltry breast cancer ratings of 0%-5% whole person impairment under the AMA Guides and the lengthy process to try to obtain a higher rating utilizing Almaraz and Guzman principles.

After the hearing, as part of Women in the Workplace Day, legislative staffers heard a presentation from the highly acclaimed, and largest pro bono law firm in the nation, Public Counsel regarding apparent constitutional violations in California's workers' compensation system. Since that presentation, Public Counsel has sent a letter to the Department of Industrial Relations outlining gender discrimination issues and demanding the State cease unlawful practices and policies that violate the Equal Protection Clause of the U.S. Constitution and California Constitution as well as California Government Code § 11135.

And with the new legislative session, women's rights crusader Assemblywoman Lorena Gonzalez has introduced AB 1643 to again try to eliminate gender discrimination in the state's workers' compensation system. AB 1643 differs slightly from last year's bill since it now includes prohibition of apportionment for the overwhelmingly female gender conditions of carpal tunnel syndrome and osteoporosis. CAAA Women's Caucus member Laura Rosenthal testified about one of her clients at the Assembly Insurance Committee hearing. AB 1643 passed out of the Insurance Committee and is now with the Appropriations Committee.

CAAA is hopeful AB 1643 will again pass the Assembly and Senate with bipartisan support . . . and this year Governor Brown will see the importance of ensuring California's working women are treated fairly and equally in the state's workers' compensation system.