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A Democratic lawmaker is pushing legislation in California that would prohibit doctors from considering age, race or genetic factors in determining the size of workers’ compensation benefits for employees who suffer job-related disabilities.
The bill by Sen. Carole Migden, D-San Francisco, would alter a key provision of the sweeping workers’ compensation changes promoted by Gov. Arnold Schwarzenegger and employers in 2004.
Among other things, the reforms require doctors to determine what “other factors” besides a job-related injury contributed to a worker’s disability. Benefits can be cut if the physician decides that an earlier injury or a medical problem contributed to the disability.
Critics say the legislation has led to awards that discriminate based on a worker’s age, race, gender, national origin or genetic predispositions.
“People are being knocked down right out of the gate because they’re old, because they’re black, because they’re women,” said Sue Borg, president of the Applicant Attorneys’ Association of California, a group of lawyers who represent injured workers.
But Jerry Azevedo, a spokesman for the Workers Compensation Action Network, an employers’ group, said the 2004 legislation created a fairer system. He said it prevents employers from having to pay higher awards based on pre-existing medical conditions that contribute to disabilities.
“From an overall perspective, apportionment really is a fairness issue,” he said. “It’s a fairness issue for employers not being liable to pay for a previous injury or any portion of an injury that’s a function of a pre-existing medical condition.”
Before the 2004 changes, disability benefits could not be reduced because a worker had a pre-existing condition that didn’t affect his or her job performance, Borg said.
Now doctors are required to apportion how much of a disability was caused by the work injury and how much was caused by other factors, including prior injuries.
That has led to a growing number of decisions that supporters of the Migden bill contend have resulted in discrimination based on age, gender, race or other conditions that have traditionally been covered by anti-discrimination laws.
The bill would prohibit consideration of those factors in determining disability awards.
Borg, whose group is a leading supporter of Migden’s bill, cites the case of a black man who suffered a heart attack and the doctor ruled that part of the resulting disability was based on a racial risk factor for hypertension.
In another case, Borg said, a disability award for a woman from Central America was reduced because the doctor concluded that women from that region tend to have personality disorders.
“Then there are all these elderly people who have conditions related to age,” Borg said. “The mere fact that they are old is causing them at the get-go to have to defend their benefits.”
That’s what happened to a 76-year-old Sacramento woman, Lois Vaira, who suffered a broken back in 2003 while working for the California Travel and Tourism Commission as a receptionist.
A doctor concluded that 40 percent of her resulting disability was due to osteoporosis or the precondition of osteopenia, and her workers’ compensation benefits were reduced by that amount.
Vaira sued and a state appeals court gave her a partial victory in December. A three-judge panel ruled that an employee’s age could not be considered in awarding disability benefits, but a pre-existing condition could. Nevertheless, the court ordered that the amount of benefit reduction in Vaira’s case be reconsidered.
“An older woman worker ought not to be discriminated against because she aged on the job,” Migden said. “That’s basically what I am saying here. I think there is legal clarity that has to be sought” with the legislation.
A spokesman for Schwarzenegger, Aaron McLear, said the governor’s office has not taken a position on the bill.
Migden, Borg’s group and other supporters have scheduled a news conference today at the Capitol to discuss the legislation.