California's workers' compensation reforms are being contested in a lawsuit that argues changes to the benefit structure are discriminatory against older workers and women who have been pregnant.
This latest challenge is in the form of an action filed with the state appellate court on behalf of an older injured worker, Marlene Escobedo, whose award was reduced on the basis of a finding she had a pre-existing condition involving degenerative arthritis.
Her suit alleges that the new workers' compensation system reduces benefits based on age, gender and other factors.
The new benefit system was established by legislation passed last year known as SB 899, which was designed to stabilize the workers' comp system by outlining specific criteria for deciding impairment levels.
"The governor's law is allowing insurance companies to discriminate against Californians over 40," said David Schwartz, president of the California Applicant Attorneys Association, an organization for attorneys representing injured workers.
He said the law also permits insurers to use "temporary symptoms of pregnancy to penalize women who are later injured on the job."
"Thousands of older working Californians are being unfairly discriminated against," Mr. Schwartz said. "This lawsuit is intended to stop that discrimination."
Ms. Escobedo injured her left knee while working at Marshalls in 2002. She was 61 at the time. She had no history of knee injuries and had never seen a physician for any knee problems.
"No supervisor, fellow worker, or anyone else has testified that Marlene was limited in performing her job, yet the insurance carrier is reducing Marlene's meager disability compensation by 60 percent," said Bill Herreras, Ms. Escobedo's attorney and a CAAA member who has filed her appeal in the Second District Court of Appeal in Los Angeles.
"California has long prohibited reduction of workers' compensation awards based on an employee's pre-existing medical condition or vulnerability to disease. The discrimination against Ms. Escobedo, based upon her age and her arthritis, violates one of the fundamental public policies of our state and nation."
Susan Gard, a spokesperson for the California Division of Workers' Compensation, said that she had not yet seen the lawsuit and could not respond to the allegations.
The CAAA has its own challenge to the workers' compensation reforms in the state court system. Last month, the group filed a lawsuit directly with the state Supreme Court, according to Mark Gerlach, a consultant working with the CAAA. The court is still considering whether or not to hear the case, he said.
© Arc, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to TMSalesOperations@arc-network.com. For more information visit Asset & Logo Licensing.