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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




 

> Reflections on Almaraz Guzman
> Pain & the Brain: Imaging Methods
> Functional Capacity Evaluation
> Defense Perspective: Mad as Hell
> Computer Corner: TextMap
> Editor's Rant: A Dog's Breakfast
A Dog's Breakfast
Another Editor's Rant on Reform
Editorial Opinion by Marjory Harris