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Update on Limping Into 2010
Another Editor's Rant on Reform


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

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.


   
   

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 Bay Area and Inland Empire, and mentors attorneys on big cases. Reach Marjory at (888) 858-9882 or email to
MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com