Photo credit: San Diego Union Tribune

Asm. Lorena Gonzalez, D-San Diego, will hold an informational hearing on Tuesday titled “Establishing the Evidence Based Value of Women’s Breasts in Workers’ Compensation.”

While details are sparse, the explanation in the hearing’s notice — a copy of which was obtained by CalWatchdog — is to provide “background on gender biases that impact women within the workers compensation system, specifically the value of breasts according to current state law.”

After initially agreeing to provide info, Gonzalez’s office has repeatedly refused to provide either detailed or general “evidence” on the value of breasts in the workers compensation system.

The morning hearing will be followed by a luncheon to discuss Gov. Jerry Brown’s veto of a bill Gonzalez sponsored that would have, among other things, prohibited rating prostate cancer as worse than breast cancer (likely the valuation of breasts that Gonzalez will discuss at the earlier panel) in the valuation of permanent disability claims.

When the bill was vetoed in October 2016, Brown argued that the workers compensation system “must be free of gender bias,” and the Gonzalez bill was based on a “misunderstanding” of the “evidence-based standard” of permanent disability ratings and “replaces it with an ill-defined and unscientific standard.”

Tuesday’s luncheon will also present research “supporting a gender discrimination lawsuit” against the state.

The hearing will be part of a celebration of Women in the Workplace Day. It will be convened by the Select Committee on Women in the Workplace, which Gonzalez chairs.

But Tom Monteleone got a nasty lesson in California’s employee relations law last week.

One of his cooks was terminated after a few weeks of erratic behavior. The cook, who had been with Barone’s for 25 years, fought back, Monteleone said. The employee retained an attorney, found a doctor to diagnose him with a work-related injury and alleged he had cumulative trauma.

The law permits employees to claim that repetitive stress over a period of time has caused damage and entitles them to cash.

“Late Reported” Cumulative Injury Claims

Source: Workers’ Compensation Insurance Rating Bureau of California

All states permit some form of such claims, but California is widely seen as the most permissive and lucrative in such awards. When the worker comp claims awards increased in 2010, cumulative injury claims were cited as a cause in a report released in January by the Workers’ Compensation Insurance Rating Bureau of California.

One of the primary reasons is a provision of the state code doesn’t allow for a report date for an injury when it considers a cumulative trauma claim. Among the largest increases among cumulative claims is so-called “late reported,” regarding injuries that had not previously been reported.

Therefore, Barone’s fired employee was allowed by a panel of the California Workers’ Compensation Appeals Board to walk away with a five-figure payday from Monteleone.

It was done so at the behest of the state, which gave the worker $25,000. Monteleone had asked that he allow his lawyer to contest the departed employee’s allegations but was refused.

“They don’t even ask me if I want to settle, I don’t get to challenge whatever he says,” Monteleone said. “It’s between the insurance company lawyer and the employee.”

His insurance bill increases to pay a portion of the $25,000 over a three-year period, he figures. Start adding up these claims and it begins to amount to something.

Becoming a Trend

Which is what Monteleone sees happening. A couple years ago, he fired two employees who were stealing from him. Shortly after terminating the employees, he received a notice that both workers were filing a claim, again under the state’s cumulative trauma provision.

Both won five-figure payouts.

“The law is clear and it’s unique to California,”said Dan Pondella, the insurance agent who handles Monteleone’s workers compensation policy. “Anyone can claim cumulative trauma and get paid, even if they worked for years and never said a word. And in this case, even if they get fired for stealing.”

Pondella blames the attorney lobby and state lawmakers for failing to buck the heavy influence and create a better state for employers.

“I would say at least 80 percent of our clients have had cumulative trauma cases,” Pondella said. “Manufacturing firms can move, and they go to Texas where the workman’s compensation insurance is a third of what it is here. Someone like Tom, who is running a family business that has been here for generations, he can’t move so easy. Instead, if he wants to stay in business, he now has to pay that extra amount for the next three years.”

The focus of business advocacy groups like the California Small Business Association as pertains to worker’s compensation is a larger look.

“When it comes to those kind of claims, the employer doesn’t have a leg to stand on,” said Lynn DellaCroce, an agent with HUB International Insurance Services in Santa Maria. She said Monteleone was “damn lucky” to get off for $25,000.

Like other worker’s comp claims, the judge in the case relies on state law, which allows that if 1 percent of your injury can be attributed to employment, your claim, if it satisfies other criteria, is valid.

The state in 1994 enacted reforms that required employers to establish a procedure to chronicle potential cumulative injuries, which are attributed to repetitive movement.

At the time, proponents of the change claimed it would benefit employers through prevention. Much of the focus then was on carpal tunnel syndrome, which arose as more computer-related work including typing became more common. But loopholes and questionable – – albeit successful — claims have provided dubious benefits employers.

High CA Payouts

There are 24 worker’s compensation appeals boards around the state, where claims are heard. California employers pay out the highest worker’s compensation insurance rates in the U.S., according to a national study. There are numerous reasons to apply for payments, most prevalently from actual on-the-job injuries. Wedged in there are claims for cumulative trauma. California is considered the most liberal in the nation when it comes to handing these awards out, with a ready base of lawyers and doctors set up to establish the malady.

The last attempt to temper the state’s cumulative trauma law came in 2004 from then-state Assembly Member Guy Houston, R-San Ramon. The measure died immediately.

“It’s a law that penalizes the employer when, if I had been advised that there were problems that someone was having, I could have done something about it,” Monteleone said. “But the state just goes along with whatever is alleged.”

After less than two years in the state Assembly, the former San Diego labor organizer has established herself as the state’s leading advocate for workers.

Last year, Gonzalez successfully authored legislation to force companies – large and small – to provide paid sick leave to nearly all of their employees. This year, she’s urging Democrats to wade into a politically-sensitive fight over the state’s workers’ compensation system.

“People in Sacramento, given past fights, don’t want to touch workers’ comp,” Gonzalez told CalWatchdog.com in a recent interview.

Nevertheless, or perhaps because her Democratic colleagues have shied away from the issue, Gonzalez has taken on the challenge. At last weekend’s state Democratic convention, she persuaded her party to endorse her call to end gender bias in the state workers’ compensation system. In the process, Gonzalez could upset a landmark compromise that drove down rising workers’ comp costs.

Gender bias in workers’ compensation

Employers are required to purchase insurance to cover injuries sustained by their employees at the workplace. Regardless of who is at fault, injured workers are eligible to apply for benefits and receive compensation under the employer’s compensation insurance.

In cases of permanent disability, workers are evaluated on the extent of their injury. But, not all injuries can be isolated to one cause or incident. Consequently, claims must go through an apportionment process to determine how much of the injury is due to the job and how much is due to another factor or pre-existing condition.

Gonzalez contends that the apportionment process is unfair to women in permanent disability cases by providing a lower or no rating for pregnancy, menopause and breast cancer. By comparison, conditions that affect men, such as testicular and prostate cancer, receive a higher disability rating.

“With workers comp claims, women are deducted because they’re pregnant or menopausal,” Gonzalez pointed out. “The most egregious (case) is the way the workers’ comp system deals with breast cancer. A women’s breast cancer is rated 0 percent, unless she is of child-bearing age, then she gets 5 percent.”

AB305 changes ratings, apportionment in workers’ comp

To address the inequity, Gonzalez has authored Assembly Bill 305, which would prohibit pregnancy, menopause or osteoporosis from being used in the apportionment of permanent disability cases. It would also require that the impairment ratings for breast cancer be equivalent to prostate cancer.

“It’s time for our state to stop treating gender as a pre-existing condition and provide equal protection under the law for everyone with a workers’ compensation claim,” she said. “I’m pleased that Democrats as well as Republicans recognized the importance of ending discrimination against women on the job.”

Her colleagues in the state Assembly agreed and recently passed the bill on a 59-18 vote. She’s proud that seven Republican Assembly members joined Democrats in supporting the bill. Not a small achievement considering the big name opposition from a collection of business groups, including the Association of California Insurance Companies, California Chamber of Commerce, California Newspaper Publishers Association and the California Retailers Association.

Gonzalez: It’s worth the price

Ever since Gov. Arnold Schwarzenegger’s landmark reforms in the early 2000s, workers’ compensation has remained a political lightning rod. Lawmakers have largely been reluctant to make changes to the reforms that are credited with bringing down the costs of insurance.

That’s one reason why the California Democratic Party’s support could help keep lawmakers committed to the issue. The party resolution passed the general session on consent by acclimation.

“Governor Schwarzenegger’s changes and other discriminatory policies are deeply embedded into the workers’ compensation system, as evidenced by the facts that carpal tunnel syndrome – a disorder that disproportionately affects women – too often has a disability rating of 0 percent,” the party’s resolution states.

In 2012, Gov. Jerry Brown signed into law some changes to the state workers’ compensation system to increase benefits and revise the factors for determining permanent disability. However, those changes were largely embraced by both parties because they were sold as reforms to keep costs in line. To her credit, Gonzalez has been willing to take the potential cost head on.

“Civil rights are inconvenient and costly,” she said. “Even if there is a very small cost, I think it’s important to uphold the civil rights of women. If we are going to talk about pay equity, then we need to talk about everything.”

It’s unclear how widespread the problem is. According to the legislative committee analysis, “Some supporters have asserted that ‘we see it every day’ while some opponents assert that the wrongs complained of simply do not occur in the workers’ compensation courts.”

California hospitals could be facing millions of dollars in increased workers’ compensation claims if a bill sponsored by the California Nurses Association is signed by Gov. Jerry Brown. As of Tuesday afternoon, Brown had not made a decision.

Assembly Bill 2616, by Assemblywoman Nancy Skinner, D-Berkeley, would expand workers’ compensation claims for nurses (and other hospital employees in direct contact with patients) who also are infected with methicillin-resistant Staphylococcus aureus.

MRSA is usually a mild skin infection, causing sores and boils, but occasionally can be life-threatening, according to WebMD.com. It is spread through contact, and is resistant to treatment with antibiotics.

Currentl,y hospital employees must prove that they contracted MRSA in the hospital in order to collect workers’ compensation benefits. AB2616 changes that to mandate that there is a presumption that hospital workers contracted the disease in the hospital.

In addition to private hospitals, the bill would apply to state-run hospitals, developmental centers and prison facilities. Those facilities are supported by the state General Fund, which could take a hit if AB2616 becomes law, according to an Assembly legislative analysis of the bill.

“[I]f even one additional MRSA-related workers’ compensation claims [sic] was filed and approved as a result of this presumption, the cost could easily be in excess of $200,000 GF,” the analysis states.

$172 million

That translates to more than $172 million in additional workers’ compensation payouts if just 1 percent of the approximately 86,000 nurses represented by the CNA file MRSA claims. And that does not include the thousands of hospital workers not covered by CNA who would also benefit from AB2616.

About 52,000 MRSA patients were treated in California hospitals in 2007, according to one of the bill’s findings citing the Office of Statewide Health Planning and Development.

While the bill would be a boon to hospital workers, it could come at the expense of their patients, according to Wendy Kaler, infection control manager at St. Francis Memorial Hospital in San Francisco.

“We’re deeply concerned that if AB2616 becomes law, unnecessary claims against hospitals will escalate and our workers’ compensation costs will increase,” she told the Assembly Insurance Committee on April 23. “Which ultimately means fewer dollars for patient care and quality improvement efforts.

“At a time when hospitals are focused on successful implementation of health care reform and improving the quality of the care we provide, AB2616 leads us in the wrong direction.”

Overblown

Kaler, who said she’s been working in hospital infection control for 22 years, believes the concern about hospital workers acquiring MRSA is overblown. All hospitals have procedures in place to prevent the spread of infection, she said, unlike the outside environment where 2 percent of the public carry MRSA in their noses and MRSA has been found on a BART car seat.

“This bill is unnecessary and not rational,” she said. “Health care workers have never been identified, based upon surveillance and outbreak investigations, as an at-risk population for MRSA skin infections. The hospital is a far more controlled environment, and risk to employees is actually far lower.”

Kaler also pointed out that many health care employees work at more than one hospital, making it difficult if not impossible to prove which hospital should be held liable for the workers’ compensation claim.

Skinner pointed out that workers’ compensation regulations already provide a presumption that public safety employees who have contracted MRSA caught it on the job.

“Now I would not at all withdraw those presumptions for our public safety,” she told the committee. “They put their lives on the line for us every day. We have many more females in the profession, but it’s a male-dominated profession.

“The female-dominated profession, direct-care hospital workers, that encounter MRSA on a daily basis are not given a presumption on that, and must prove under a workers’ comp setting that they contracted it at the workplace.

“The issue is that we would be extending this to a class of employees who by their profession put themselves at risk to help others. So in that context, while it’s not completely analogous to public safety workers, there is some similarity.”

Outbreak

She was supported by CNA President Malinda Markowitz, who is also a nurse at Good Samaritan Hospital in San Jose.

“Last December my hospital had an MSRA outbreak on the mother-baby unit,” she said. “And management decided to issue a letter stating that all employees in the infected units would be tested. And those who tested positive, including workers who were asymptomatic, would be sent home between seven and nine days. And that employees may access their vacation time or not be paid during the forced time off.

“The employees were never told about their rights to access workers’ compensation for this type of situation. When the RNs were tested positive, they inquired if the situation qualified for workers’ compensation. And they were told it did not.

“This type of situation goes on every day in California hospitals. RN and other health care workers face an enormous amount of pressure and intimidation from management to not file workers’ compensation claims, or face claim rejections.

“When nurses do file claims, they are often harassed and embarrassed to the point where they do not proceed with the claim or do not file an appeal if they were rejected.”

Deposition

Mike Herald, representing the California Applicants’ Attorneys Association, said that one nurse who filed a MRSA workers’ compensation claim “was put through a lengthy deposition in which they explored virtually every aspect of her private life, including her sexual history, to try to determine if in fact that MRSA could have occurred in any other circumstance. It was a humiliating experience for this person. That’s exactly what we want to try to avoid, and why we support AB2616.”

But Scott Neely, vice president and chief medical officer for St. Joseph’s Medical Center in Stockton, agreed with Kaler that there’s good reason to suspect that nurses are not contracting MRSA in the hospital.

“I oppose adoption of the presumption that MRSA skin infections represent an occupational injury due to the fact that there is no clinical or scientific basis upon which to support this conclusion,” he said. “There is no data whatsoever to support the idea that health care workers following accepted infection-prevention behaviors are at risk for developing MRSA skin infections as a result of their occupation.

“Thus a presumption that a health care worker acquired an MRSA skin infection at work is simply not based on sound scientific evidence. To the contrary, the only presumption that can be supported by current evidence would be that an MRSA skin infection in a health care worker did not arise as a result of a workplace exposure.”