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In the last
issue, I ranted
about the status of the permanent disability rating system
and partisan political pressure on, and coming out of, the
Department of Industrial Relations [DIR], Division of Workers'
Compensation [DWC] and Commission on Health and Safety and
Workers' Compensation [CHSWC]. To recap, on the eve of the
New Year the governor’s office announced that the Administration
had elected not to comply with the mandate of Labor Code 4660(c),
requiring the revision of the permanent disability rating schedule
by January 1, 2010. Since then, Democratic leaders of both
the State Senate and Assembly and prominent committee chairs
sent
a joint letter to Carrie Nevan, Acting DWC Administrative Director, demanding
that she explain the delay and provide a timeline for implementing
the new schedule.
Ms. Nevans’ response set no timeline
and tied the delay to uncertainty over the economy and the
effect of the Almaraz/Guzman and Ogilvie [A/G & O] decisions.
It hints that the rebuttability of the rating schedule is an
issue: She wrote, “Against this backdrop, and absent
greater legal clarity on the conclusiveness of the PDRS’ methodology
in establishing an injured worker’s level of disability,
it is not currently prudent to move forward with a revision
of the 2005 PDRS….Given the fundamental nature of the
legal disputes over the PDRS, I recognize that ensuring an
objective, consistent, and uniform PDRS that provides equitable
benefits for injured workers may require legislative changes.”
There’s what we’ve been hearing from DIR Director
John Duncan, Arnold’s puppet, and CHSWC, Duncan’s
puppet. The Republican mantra: more “reforms” are
needed to get rid of the prima facie language of Labor Code §4660(c),
so the rating schedule cannot be rebutted, and to abrogate
Almaraz/Guzman and Ogilvie. In the CHSWC “Proposed language
bill format DRAFT 2009 09 03 1100.doc” mentioned in my
last rant, Sec. 4660 was redrafted for proposed legislation
that would allow the Administration to use the existing schedule
until 1/1/2015. A/G & O would be explicitly abrogated.
Click
here for the full text.
And then we have folks jumping on the “reform” bandwagon,
to promote their practices revolving around permanent disability
rating. Defense attorney Phil Walker, self-described as "the
leading authority for workers' compensation law" is now "trying to do what
many people have thought impossible: bring together the disparate
players in the workers' comp world to focus on a single objective:
to start fixing a broken workers’ comp system in California."
Gee,
wasn’t that what Arnold claimed to have done back in
2004? I remember Arnold’s speech and press release in
April 2004, crowing about having fixed the broken system: “I
promised in my campaign that we would reform our state's broken
workers' compensation system and today we have the results.
After many weeks of difficult negotiations, the Legislature
was able to put aside the special interests and join with me
to deliver meaningful workers' compensation reform. Just as
we did with Propositions 57 and 58, both sides came together
and rose above partisan politics to reach a bipartisan consensus.
Working together, we have produced a huge win for California.
Our bill provides strong reform that will save jobs, reduce
costs for our employers and improve care for injured workers.
Our state can now become once again the job-creating machine
it once was. With meaningful workers' compensation reform,
California is open for business."
I missed Phil’s March conference (which Phil advised
was “a great success”), so I don’t know if
Phil has fixed the system yet. I know Arnold didn’t fix
it. As one of those laboring in the trenches for the 6 years
since SB 899, it seems to me that the “reforms” created a broken system. If it is working so well, why can’t
the governor comply with the very law he proclaimed a victory?
Why is there no new permanent disability rating schedule based
on “empirical data” and “additional empirical
studies” in compliance with Labor Code §4660?
I guess the answer is that the cost of workers’ compensation
insurance, which required emergency “reforms” in
2004, now requires the Administration to set aside those reforms
temporarily while finding a way to further decrease benefits
(oops – I mean to decrease the cost of insurance while
claiming to still provide benefits). The same emergency – California’s
troubled economy – is still the same reason given for
curtailing benefits.
Forgive my cynicism, but I doubt that
the people who created this mess are capable of fixing it.
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