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Limping Into 2010
Another Editor's Rant on Reform

Editorial Opinion by Marjory Harris
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> Editor's Rant: Limping into 2010

Badly injured, the California workers’ compensation system limped into 2010. On the eve of the New Year was the stunning announcement from the governor’s office that the Administration has elected not to comply with the mandate of Labor Code §4660, requiring the revision of the permanent disability rating schedule by January 1, 2010. The day before this arrogant disdain for the law emanated from Arnold, his appointee to run the DIR, John Duncan, requested of two appellate courts the right to file amicus briefs urging the overturning of the Workers’ Compensation Appeals Board’s en banc opinions in Almaraz/Guzman and Ogilvie [A/G & O], claiming that “the WCAB ignored basic rules of statutory construction and ignored the Legislature's plain language. As a result, the WCAB dramatically altered the mechanism for calculating permanent disability without any basis in law….”

It should surprise no one that the Administration is holding a new rating schedule hostage as it tries to persuade the courts to vacate A/G and O and the legislature to pass legislation that would eliminate the rebuttability provision of Labor Code §4660(c): “The administrative director shall amend the schedule for the determination of the percentage of permanent disability in accordance with this section at least once every five years. This schedule shall be available for public inspection and, without formal introduction in evidence, shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.” This is the same subsection that the Administration has thumbed its nose at.

In early September 2009, according to a WorkCompCentral article, Duncan told a WCC reporter that he was aware his department was required to have a new schedule in place by January 1, 2010: “Our intention is to take an action by then,” he said. “I'm not going to preclude a grand legislative understanding that preempts our regulatory obligation in some action.”

In the ongoing melodrama that is workers’ compensation today, just days before the WCAB’s 9/3/09 decisions known as Almaraz/Guzman II and Ogilvie II, a secret document prepared by the Commission on Health and Safety and Workers' Compensation [CHSWC] leaked to the media. Labeled “confidential,” this “Draft Labor and Management Savings Discussion” proposed, inter alia, a conclusive rating schedule, rather than a prima facie one. The first “Savings” addressed is from permanent disability, and the draft notes: “California has a problem with a highly litigious permanent disability rating system. Workers who litigate their PD ratings generally obtain higher awards than those who do not litigate, so the system creates incentives for litigation.” Within days another document surfaced labeled “Proposed language bill format DRAFT 2009 09 03 1100.doc” which extensively rewrote existing law and 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. Click here for CAAA's response.

We learned that the draft legislation was to be used by the Republican caucus to ‘reform” the “reforms” of SB 899. We wondered why CHSWC was engaged in secret meetings and what appears to be chicanery. Itself the creation of reform legislation, the Commission on Health and Safety and Workers’ Compensation is in the DIR, under Duncan: “CHSWC is a joint labor-management body created by the workers' compensation reform legislation of 1993 and charged with overseeing the health and safety and workers' compensation systems in California, and recommending administrative and/or legislative modifications to improve their operation.”

As is now completely obvious, CHSWC is a political arm of the Administration and interested not in helping injured workers but in keeping the employers’ costs as low as possible. Why the focus on permanent disability, a small percentage of the overall cost of workers’ compensation? Because that is generally the only pool of money available to pay an injured worker’s attorney. If the PD is miniscule, the attorneys who represent injured workers will go out of business. It would be unconstitutional to pass a law prohibiting injured workers from hiring attorneys, but instead we have laws saying attorneys cannot be paid directly by injured workers and can only be paid by order of the WCAB, and only – generally – from permanent disability money. Keep that really low, and the lawyers will no longer take workers’ compensation cases.

I’m not a soothsayer, but I can safely predict that 2010 will see heated battles in Sacramento, back room deals, lobbyists throwing sand and magic dust in the eyes of the not-yet termed out legislators, and the usual nonsense that attends “reform” legislation.

I linger on the battlefield, trying to help injured workers find decent treatment and return to work, as I choke on the alphabet soup of MPNs, UR, ACOEM, ODG, AMAG, A/G & O, GAF, FEC, and EAMS, and eat the stale crust of bread now allotted us for our efforts. I fight off battle fatigue as potential clients plead for help. I wonder what new weapons of destruction will further destroy the rights of injured workers and decimate the ranks of those willing to treat them or represent them. I am prepared for existential malaise, but I hope for justice.

Marjory Harris 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, San Jose and San Bernardino venues and mentors attorneys on big cases. Reach Marjory at (888) 858-9882 or email to