California Court of Appeals Forbids Schwarzenegger Workers’ Comp Law From Being Used to Discriminate Against Seniors and Women

[courtesy of California Progress Report]

Court agrees with AARP and civil rights groups
Calls for legislation to fix law made

By Frank D. Russo

Yesterday's decision by three judges of the California Court of Appeals that the so-called "reform" of workers' compensation laws--the law that Schwarzenegger demanded and the legislature enacted in 2004--cannot be used when it leads to discrimination based on gender or race is just the latest example of how badly that law was written. The legislature bought a pig in a poke when they were stampeded into adopting at a 3 a.m. committee hearing followed by floor votes of a complicated 75 page bill which almost none of them had read--or really considered.

Workers have been paying for this ever since.

Read this case and you'll understand why the American Association of Retired Persons (AARP) and various civil rights groups joined in with the injured workers' attorney to challenge the use of this badly written law that 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."

The case is Vaira v. Workers’ Compensation Appeals Board . It involves a 76year old employee, Lois Vaira who was injured while working for the California Tourism Department. It is an unpublished decision--meaning its use as precedent will be limited--but the court's decision and the facts of the case call out for a revision of the law.

Mind you, this was not a court of wild eyed liberals. Two of the judges were appointed by Republican Governor Wilson and the third was appointed by Republican Governor Deukmejian.

Vaira and her attorney had to go to the Court of Appeals to get an order that the Workers Compensation Appeals Board (WCAB) restore benefits taken from her based on her age. To not do so, the court ruled would violate California Government Code section 11355, which provides in pertinent part: “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…”.

Lois Vaira fractured her back at work in January of 2003. After the injury, medical exams revealed that Ms. Vaira had osteoporosis, a disease in which bones become fragile and more likely to break. Osteoporosis is four times more likely to occur in women than in men. Eighty percent of the 10 million Americans with osteoporosis are women. 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 osteoporosis or seeing any symptoms.