The XX Factor

Being a Woman Isn’t a Pre-Existing Condition, Says This California Workers’ Comp Suit

A medical examiner told one woman her carpal tunnel syndrome might clear up when she stopped breastfeeding.

A class-action lawsuit filed Wednesday alleges that California’s workers’ compensation system discriminates against women, routinely attributing work-related injuries to the pre-existing condition of being a woman. Plaintiffs claim that diagnoses of carpal tunnel syndrome were brushed off as the result of menopause or breastfeeding rather than consequences of years typing at a work computer, and disability benefits provided for female-specific cancers were significantly lower than those for cancers that affect the male body.

Filed by a group of individual female workers and the Service Employees International Union (SEIU) California State Council, the suit describes several cases in which women’s disability benefits were slashed because state-trained qualified medical evaluators (QMEs) attributed their work-related health conditions in part to the “risk factors” of their gender or reproductive capacity.

One plaintiff, Leticia Gonzalez, worked 40 hours a week for 17 years as a technician at a telecommunications company, mostly spent typing at a desk. She developed pain and numbness in her neck, arms, wrists, and hands, which persisted even after surgery. A QME diagnosed her with work-related carpal tunnel syndrome and nerve damage in 2014, granting her permanent disability benefits. But the QME attributed 20 percent of Gonzalez’s injuries to the “non-industrial factors” of her age and gender. “Carpal tunnel compression neuropathy is almost ubiquitous in the female population in her age demographic,” the QME wrote. Because she was a woman, Gonzalez got less compensation than she would have if she were a man.

Veronica Kelley, an events manager, also developed carpal tunnel after several years of daily office typing. The suit states that she started experiencing symptoms in early 2013, but it took her until August 2014 to get an appointment with a specialist in the workers’ compensation system. By that time, she was pregnant. Kelley brought her four-month-old baby to her appointment with a California QME in February 2015. According to the lawsuit, the QME “expressed annoyance” that the baby was there and asked Kelley repeated questions about breastfeeding and how it affected her carpal tunnel symptoms.

Kelley allegedly noted several times that her condition had begun before she’d even gotten pregnant. Still, the QME reported that Kelley’s carpal tunnel was “either the result of or aggravated by her pregnancy and breast feeding” and “should be expected to improve with the simple passage of time including when she stops breast feeding her infant.” Since that report, Kelley has stopped breastfeeding and has reported no improvement in her symptoms, indicating that the QME’s evaluation was based in gender-related bias and not an accurate assessment of her workers’ compensation claim.

“California’s system of workers’ compensation perpetuates the type of overt sex discrimination that is a relic of a past era,” the complaint reads. “It deprives women workers of fair compensation on the basis of stereotypes about gender and women’s reproductive biology. … By permitting and condoning the distribution of workers’ compensation benefits on the basis of sex, the State of California sends a clear message that women’s work is worth less.”

The complaint alleges that being a male or having male reproductive characteristics are never cited as pre-existing conditions, risk factors, or reasons for reducing disability benefits or workers’ compensation. It also claims that California’s system of benefit allocation for permanent disability underestimates harm specific to women—namely, the effects of breast cancer—by using the American Medical Association Guides to the Evaluation of Permanent Impairment. These impairment ratings are medical assessments that affects benefits, with a higher impairment rating translating to higher benefits. If a man has his prostate removed due to work-related prostate cancer, the AMA guides usually grant him an impairment rating of 16 to 20 percent. A woman who’s had a mastectomy during or after developing work-induced breast cancer will get up to a 5 percent impairment rating if she’s of reproductive age and no impairment rating at all if she’s older than that.

That’s what happened to another plaintiff, law enforcement sergeant Janice Page, who got breast cancer and underwent five surgeries as a result, including a mastectomy of her right breast. When she filed for workers’ compensation, the examiner determined that her breast cancer was an effect of years of exposure to carcinogens in her workplace. The suit details a slew of lasting physical, psychological, and emotional consequences Page has suffered since her mastectomy. But since she was past childbearing age, Page was granted a zero percent impairment rating for her work-induced mastectomy, as if she’d have no use for her breasts beyond their functioning as milk producers.

The suit also cites cases wherein women’s awards for work-related “psychiatric injuries” like depression were reduced by as much as 80 percent because of “perimenopausal factors” and “gynecological issues,” rulings that seems to rely on the old sexist myth that women endure hysterical bouts of mental disturbance due to the workings of their reproductive organs, making their suffering less acute than men’s. In workers’ compensation cases, those stereotypes can cause real financial damage to someone who’s earned a fair award but finds herself hampered by the pesky fact that she was born female.