The California Workers’ Compensation system serves as a lifeline for employees who have sustained work-related injuries or illnesses, offering necessary financial aid and medical support. However, bias on the part of a neutral party such as a QME will distort case outcomes and perpetuate injustices in access to medical care and compensation. By acknowledging the existence of bias and striving to recognize and eliminate it for true neutrality, we allow for equity in the care of injured workers.
Understanding Bias through Statistics
Bias in Workers’ Compensation cases may be implicit, explicit, or systemic. It encompasses the influence of race, gender, socioeconomic status, and disability. Implicit bias is unconscious, while explicit bias is overt. Systemic bias includes barriers to access due to socioeconomic status or location.
Research underscores the disparities faced by certain groups, including minorities, women, low-income workers, and individuals with disabilities, who encounter systemic barriers throughout the claims process. Recent data from 2022 in California reveals that 56.1% of claims were filed by males, while 43.9% were filed by females. Notably, workers aged 25-34 accounted for a significant portion, representing 25% of all claims filed this year (1).
Based on nonfatal injuries reported to the California Division of Workers Compensation data from 2021, 61% of injuries were to Latino workers, who only comprise 40% of the California population, making them the group most at risk of workplace injuries. 22% of injuries occurred to Caucasian workers, who make up 35% of the population. Asians are similarly protected from industrial injury, comprising 8% of injuries but 15% of the population. African Americans comprise 5% of injuries and 4% of the California population, making them slightly more likely to get injured (2) (3). The incidence of non-fatal occupational injuries among the Latino demographic exhibits a discernible correlation with population density. There are several factors that contribute to the disproportionate rate of work injuries among Latino workers in California compared to other ethnic groups. Latino workers are often employed in industries with higher rates of workplace hazards, such as agriculture, construction, and manufacturing, which involve physically demanding work and exposure to dangerous machinery, chemicals, and environmental hazards. Language barriers and English proficiency may hinder Hispanic/Latino workers’ ability to receive adequate safety training, understand workplace safety protocols, and communicate effectively with employers about workplace hazards. Additionally, economic disparities and socioeconomic factors, such as lower wages, limited access to healthcare, and lack of job security, may force Latino workers to accept employment in high-risk occupations with inadequate safety measures.
Figure 1. Of the injuries where race was reported, Latinos make up the greatest percentage of injured workers in California.
Impact of Bias on Case Outcomes:
The subjective nature of medical evaluations and disability assessments serves as a common breeding ground for bias. Qualified Medical Evaluators (QMEs) serve as neutral parties in disputed Workers’ Compensation cases but may carry implicit bias into their evaluations. This will naturally lead to disparities in medical treatment and permanent disability. Decision-makers within the Workers’ Compensation system, including claims adjusters and administrative law judges, may similarly exhibit bias, influencing benefit allocation and dispute resolution. Adhesive capsulitis, a common Orthopaedic condition in mostly female patients, has no objective MRI evidence of disease, is difficult to diagnose, and may be underdiagnosed. Successful treatment requires intensive physical therapy, injections, and manipulations under anesthesia to all be coordinated with appropriate timing, which is incredibly difficult under Workers’ Compensation. When treated with inadequate physical therapy and lack of injections, excessive denials cause further setbacks in symptoms, creating the false impression that these patients are not motivated to improve. Home therapy regimens and sporadic physical therapy typical of Workers’ Compensation protocols differ greatly from how adhesive capsulitis is treated in private patients, where an expectation of at least 18 physical therapy sessions immediately following an injection is a normal starting point. Another demonstration of this gender-bias was seen in the case of a woman who suffered reduced disability compensation because her QME attributed 20% of her work-related carpal tunnel syndrome to her age and gender, stating that carpel tunnel is “almost ubiquitous” in the female population in her age bracket. Had this injured worker been a man, she would not have suffered the 20% loss. Such biases significantly affect case outcomes, perpetuating inequalities and unfair treatment for already marginalized groups.
The case of Marissa Agamao v. Mitsubishi Motor Credit of America showed an attempt to request a new panel due to perceived bias. The WCAB ruled that Agamao did not prove QME engaged in racial profiling, of which he was accused. Therefore, Agamao was not entitled to a replacement QME panel. Treating every applicant with respect and professionalism is mandatory, and a QME may be replaced by behaving unprofessionally.
In the case of Hilda Pritcher v. County of Los Angeles, Pritcher was issued a replacement QME panel to evaluate her multiple industrial injuries after the WCAB found that the original QME’s comment regarding Pritcher’s body reflected his bias and violated professional ethics and conduct requirements for QMEs. Although the doctor had already issued seven reports in the case, his inappropriate conduct rendered all of his reports as insufficient evidence.
Allowing bias at any level will detrimentally affect access to reasonable medical treatment and permanent disability.
QMEs are mandated to uphold professional standards of conduct, refraining from rendering opinions or conclusions influenced by factors such as a worker’s race, sex, national origin, religion, or sexual orientation. Any QME found breaching ethical treatment of injured workers faces prompt removal from the case. By raising awareness of implicit biases, implementing standardized protocols, collecting and analyzing data, and advocating for policy reforms, we ensure every worker receives the support and protection they rightfully deserve in the wake of work-related injury or illness.
References:
- Workers’ Compensation Information System. State of California Department of Industrial Relations. [Online] https://www.dir.ca.gov/dwc/wcis/WCIS_Reports.html
- Nonfatal Occupational Injuries and Illnesses in California. State of California Department of Industrial Relations. [Online] https://www.dir.ca.gov/oprl/nonfatal.htm
- California’s Population. Public Policy Institute of California. [Online] https://www.ppic.org/publication/californias-population/#:~:text=No%20race%20or%20ethnic%20group,the%202022%20American%20Community%20Survey.
