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We can thank Governor Schwarzenegger and spineless legislators
for making workers’ compensation into the dog’s
breakfast it is today. A term that means a mess or muddle,
a “dog’s breakfast” aptly applies to the
aftermath of SB 899 and other legislation attempting “reform” without
understanding the needs of the system. Whether writing murky
statutes or approving inexperienced appointees or establishing
an electronic adjudication system, our elected officials and
bureaucrats have failed to deliver a workable system, much
less a fair one.
Despite his crowing (see, e.g., http://gov.ca.gov/index.php?/press-release/
11956/), “the people’s governor” failed to
protect injured workers just as he failed to protect jobs.
A showman and show boater, Arnold has done more to mess up
the comp system than any previous governor. He continues to
intermeddle, putting pressure on his appointees to create anti-worker
regs and rulings.
The bureaucrats of the DWC, rich with “user
funding,” have time to invent an allegedly paperless
electronic system that requires reams of paper forms, expensive
scanners, dedication of personnel to scan the papers. If you
are one of the 200 e-filers, you get to fill in forms directly
on line in a tedious and clunky program reminiscent of programs
from ten or 15 years ago.
The DWC bureaucrats have time to write myriad regulations creating
a near-unnavigable maze through the QME process, at the same
time canceling an exam which would increase the small pool
of QMEs. They have time to do every damn thing but comply with
Section 4660 of the Labor Code, requiring production of a new
rating schedule every five years. Well, maybe they will come
up with something by then – they do have a few more months
to get something out. But the Govenor promised this ages ago.
Just see his press release of 10/12/07, entitled “Governor
Schwarzenegger
Vetoes Job-Killing Legislation”,
where the Governor vetoed a permanent disability increase stating: “I
am directing the Administrative Director of the Division of
Workers’ Compensation to finalize her review of the new
schedule and commence rulemaking as soon as possible to make
any changes deemed necessary.” A year and a half later,
no new PDRS and no word on when it will issue.
In the meantime, perhaps out of disgust with the inadequacy
of the current rating agenda, or just dismay that a book not
intended to be used to evaluate work disability was thrust
upon us for that very purpose, the Workers’ Compensation
Appeals Board en banc issued Almaraz/Guzman [Mario
Almaraz, Applicant v. Environmental Recovery Services (aka
Enviroserve), State Compensation Insurance Fund, Defendants
Joyce Guzman, Applicant v. Milpitas Unified School District,
PSI, Keenan & Associates,
Adjusting Agent, Defendants (2009) 74 Cal. Comp. Cases],
and then reopened it two months later for further review, as
though 56 pages weren’t enough to explain their position.
In a recent parody on YouTube, “Somebody
hates Almaraz,” a
workers’ compensation practitioner
took scenes from a 2004 German film, “Downfall,” in
which a demented Hitler rants as Berlin falls to the Allies,
and subtitled Hitler’s
diatribe with an attack on the post-SB 899 world we live in.
While many of the players in the system, on both sides of the
bar, found it hilarious, would an injured worker laugh? They
are the ones who truly suffer as they wander the bureaucratic
maze, whether or not represented, seeking pain relief, retraining,
or just survival.
How can we help them? We too are frustrated
by the ineffectiveness of the system. We are mired in endless
red tape and technicalities, far from the Constitutional mandate
of accomplishing “substantial justice in all cases expeditiously,
inexpensively, and without incumbrance of any character.” How
many of those responsible for the current mess have even read
Article XIV § 4 of the State Constitution? Why not read
it now?
Cal Const, Art XIV § 4 (2005)
SEC. 4.
The Legislature
is hereby expressly vested with plenary power, unlimited
by any provision of this Constitution, to create, and
enforce a complete system of workers' compensation, by
appropriate legislation, and in that behalf to create
and enforce a liability on the part of any or all persons
to compensate any or all of their workers for injury
or disability, and their dependents for death incurred
or sustained by the said workers in the course of their
employment, irrespective of the fault of any party. A
complete system of workers' compensation includes adequate
provisions for the comfort, health and safety and general
welfare of any and all workers and those dependent upon
them for support to the extent of relieving from the
consequences of any injury or death incurred or sustained
by workers in the course of their employment, irrespective
of the fault of any party; also full provision for securing
safety in places of employment; full provision for such
medical, surgical, hospital and other remedial treatment
as is requisite to cure and relieve from the effects
of such injury; full provision for adequate insurance
coverage against liability to pay or furnish compensation;
full provision for regulating such insurance coverage
in all its aspects, including the establishment and management
of a state compensation insurance fund; full provision
for otherwise securing the payment of compensation; and
full provision for vesting power, authority and jurisdiction
in an administrative body with all the requisite governmental
functions to determine any dispute or matter arising
under such legislation, to the end that the administration
of such legislation shall accomplish substantial justice
in all cases expeditiously, inexpensively, and without
incumbrance of any character; all of which matters are
expressly declared to be the social public policy of
this State, binding upon all departments of the state
government. |
Once there was a path through the woods. Now we wander in a
dark forest, with occasional clearings bathed in light but
disconnected to the road out of the woods. We wait for decisions
that set our world on its ear, run off to workshops, revise
our forms, then wait some more for it all to change again.
Bereft of certainty, we can only predict more of the same thing,
or some worse thing, or maybe a something slightly better thing.
Should we be grateful for the slop we are fed, as our dogs
would be? I had a little poodle who liked to run off and explore
the neighborhood. She got into a fenced yard where a huge pitbull
held sway, and had the unmitigated gall to lap with delight
from his dish of succotash (a dish we detested as children
when forced to eat it at school). So maybe some think the current
system works just fine and the only fixing it needs is to reverse
Almaraz/Guzman and Ogilvie, and that the new rating schedule
should not be rebuttable in any way, and we should use the
6th edition of the AMA Guides, to further reduce impairment
ratings.
These same people who think the current system is caviar and
champagne and not a dog’s breakfast, as I maintain, would
most like it if all the attorneys left the field. Then they
can do any damn thing they please. I intend to stay and fight.
So does my colleague on the other side of the bar, Mike McDonald,
who is mad as hell about what has happened to our system.
Marjory Harris, Esq.
began practicing law in 1974 as a defense attorney
and later became an applicant's attorney and a certified specialist.
She continues
to represent injured workers at the San Francisco,
Oakland, and San Bernardino venues and mentors attorneys on
big cases.
Reach Marjory at (888) 858-9882 or email to MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com
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