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We have reached a new legislative process low: trying to differentiate the value of boobs and prostates.

This issue arises out of a California legislative battle over AB 305 (Lorena Gonzalez), a  bill aimed at preventing certain kinds of gender discrimination in California workers’ comp.

Specifically, AB 305 prohibits apportionment if pregnancy, menopause, or menopause-caused osteoporosis is contemporaneous with the injured worker’s claimed injury. It also would require that impairment rating for breast cancer be not less than for prostate cancer.

As of earlier today (note that things could change by the time you read this) AB 305 had passed  a floor vote by the California Assembly and had passed out of the Senate Labor and Industrial Relations Committee and Senate Appropriations. A floor vote could happen in the next week.

A newly unveiled AB 305 analysis of the impairment value of breasts vs. prostates  is raising some eyebrows, however.

Here is the relevant excerpt from the August 31, 2015 Senate analysis prepared by Gideon L. Baum, consultant to the California Senate Labor and Industrial Relations Committee:

“However, some proponents of the bill have argued that the AMA Guides are not objective, specifically in the area of gender-specific injuries. Specifically, proponents point to the fact that the AMA Guides rate the removal of female breasts at a WPI of 0%, while the removal of a prostate would rate a 16%-20% WPI, arguing that such a rating shows bias against women. This line of argument, however, has some difficulties.

First, the male prostate is not a strong equivalent to female breasts. The prostate is an exocrine gland that secretes fluid, assisting the mobility of sperm after ejaculation. As will be discussed in more detail below, removing the prostate can lead to both incontinence and impotence. The closest female equivalent, or homologue, to the prostate is the skene’s gland, which is located on the surface of the vulva. Alternatively, one could also look at urthereal disease, which would lead to incontinence.

When we look at how the AMA Guides rate the female equivalent injuries, we see comparable WPI ratings. For example, vulval disease where sexual intercourse is not possible would be 26%-35% WPI. Additionally, urthereal disease which leads to stress incontinence would be a 25% WPI at a minimum.

In short, when looking at comparable injuries, both men and women appear to receive comparable ratings through the AMA Guides.

Second, as was noted above, a higher WPI indicates a higher level of impairment, and the removal of a prostate is only rated as a 16%-20% WPI if the prostate removal led to sexual dysfunction or urinary incontinence. According to the American Cancer Society, 25% to 75% of men who have their prostate removed will be impotent, depending on the age and health of the men.

The American Cancer Society does not note similar challenges after recovering from a mastectomy, which is the surgical removal of the mammary glands. If a mastectomy resulted in comparable impairment, a doctor would be able to provide a WPI rating comparable to the removal of the prostate through SB 863 and Guzman. The American Cancer Society does note that 20% to 30% of women develop neuropathic pain near the site of the surgery, though most women report that these symptoms are not severe. If they were severe pain, it is likely that they would be ratable through the AMA Guides chapter on Pain.

As was noted above, AB 305 makes breast cancer sequelae (or consequences of injury or disease) equally ratable as prostate cancer sequelae. The likely consequence of this is that it would require that mastectomies are rated the same as prostate removal.”

So in Mr. Baum’s analysis the appropriate analogue to a prostate impairment would be a vulva injury to the vagina, clitoris or associated glands, but not the breasts.

Baum assumes that breast cancer impairment ratings will be addressed by physicians under an Almaraz/Guzman approach, i.e. by the doctor using an analogy to another chart, table or method under the AMA Guides. Or by use of the pain chapter.

Gideon Baum’s analysis seems to actually make a good case for why the bill is necessary.

The AMA Guides do not address the importance of the breasts to women. Pain or scarring from breast removal aside, the hormonal issues that may ensue, the impact on self image and sexual functioning, the impact on lactation capability are just some of the aspects of living that may be affected and should be addressed in impairment rating. If nothing else, there should be a rating for amputation.

Unfortunately, many doctors do not address use Almaraz/Guzman analyses unless they are asked by an attorney. Unrepresented women and women with substantial life impacts from breast removal may be affected if things are left as they now are.

Baum’s analysis is tone deaf and frankly I found myself wondering whether it simply tracked some sort of talking points provided by bill opponents.

This may be a situation in which the bill opponents push too hard and end up irritating legislators who are sensitive to gender equality issues.

Julius Young

www.workerscompzone.com

www.boxerlaw.com

Julius Young

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