Governor’s Workers’ Comp Law Discriminates
Against Seniors, Women, Disabled
SB 899 “Apportionment” penalizes people over 50, women;
Millions of dollars withheld each year
SACRAMENTO – The Third District Court of Appeal today heard another legal challenge to Governor Schwarzenegger’s workers compensation law. The California Applicants’ Attorneys Association (CAAA) says the law discriminates against women and elderly workers by reducing the compensation they would otherwise receive for a disability caused by a work injury simply because of their age, gender or other “risk factors.”
CAAA, whose members represent injured workers, today called for the courts and the Legislature to stop age, gender, and ethnicity discrimination that reduces compensation to disabled workers by millions of dollars each year. “The governor’s law allows insurance companies to discriminate against Californians over 40, women and ethnic minorities,” said Sue Borg, president of CAAA. “Insurers and their doctors say women, minorities or older workers are more likely to develop certain conditions. Then, without any evidence these factors contributed to the work injury or were even known or symptomatic prior to the work injury, they reduce the disability award for these people. Under this new law an older worker who does the same work as younger colleagues can receive less compensation for the same work-caused disability, and a woman doing the same work as her male co-workers can similarly receive less compensation for the same work-caused disability.”
Dianne Fitzpatrick, 64 years old, injured her back working as a schoolteacher, when a disruptive student pulled her to the ground. After the injury, medical exams revealed that Ms. Fitzpatrick had low bone density (osteopenia), a condition common among middle-aged women. Women are far more likely to develop osteopenia and osteoporosis than men. More than half of Americans over 50 years of age either have weakened bones, or bones that are beginning this deterioration. But for most of these individuals, this condition has no impact on their ability to do their job, and in fact many will live their entire lives without knowing anything about their own osteopenia or seeing any symptoms.
“California has long prohibited reduction of workers’ compensation awards based on an employee’s vulnerability to disease or injury. The discrimination against Ms. Fitzpatrick, based upon her age and her osteopenia, violates one of the fundamental public policies of our state and nation,” said Borg.
Ms. Fitzpatrick was partially permanently disabled by her work injury, and would have been awarded permanent disability compensation of approximately $163,582. However, her compensation for a lifetime disability caused by her work injury was reduced by more than half due to “the aging process” and underlying osteopenia. “It is unacceptable that those who have worked hard to build California are having their compensation taken away simply on the basis of age or gender,” said Borg.
Apportionment is a mechanism to assure that employers are not held responsible for a “pre-existing” disability if one of their employees is injured on the job. Some types of apportionment are not discriminatory. For example, any prior compensation received can be deducted from a subsequent award should the worker suffer a further disability to the same body part. But “SB 899 promotes de facto discrimination on the basis of age, gender and other conditions,” said Borg. “Ms. Fitzpatrick’s case is just one of thousands penalizing the elderly, women and racial minorities in California’s workforce. As we age, everyone will develop degenerative conditions that have no symptoms, or symptoms that don’t affect our ability to do our jobs. Until SB 899, employers could not penalize a worker for a pre-existing condition if it did not impair their ability to do their job. Now, insurance companies aggressively seek any signs of aging and automatically reduce a worker’s compensation solely on that basis. Apportionment under SB 899 discriminates against older workers by using a natural part of the aging process to limit the award of compensation.”
California Government Code section 11355 provides in pertinent part:
(a) “No person…shall, on the basis of race,…sex,…color, or disability,…be unlawfully subjected to discrimination under any program or activity that I conducted, operated or administered by the state…”.
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