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Rosemary's Baby Redux:
How the Labor Code Got
Hijacked to Hell

Editor's Rant on a bad birth process

Editorial Opinion by Marjory Harris, Esq.

sp5 > Rosemary's Baby Redux: SB 863
sp4 > Defense Perspective on Reform
sp3 > Prevent Harassing Depo Conduct
sp2 > C&R Consequences – CalPERS
sp1 > Medigap Policies & Settlement
It's deja vu all over again: a cabal produces a huge piece of legislation, assuring all who will be affected that it's a good deal, and they will ultimately see its merit, even if the process and details are shadowy. The cabal knows what is best — for them.
Sound familiar? Does it evoke the nightmare of SB 899, Arnold's baby?:

In mid-April 2004, the Workers’ Compensation Conference Committee sent a sweeping reform package, SB 899, to the legislature. It was quickly voted into law, with only 3 from each house voting against it. Enacted as urgency legislation, SB 899 became effective 4/19/04.

Effective 1/1/13, SB 863 makes even more sweeping changes to workers' compensation law and procedure. Like SB 899, injured workers were not given any significant voice in what was in the bill. A negotiator for organized labor, representing less than 20% of California's workers, claimed to speak for all workers.

Supporters claim that SB 863 will increase permanent disability by 30% (it was decreased around 60% by SB 899). In exchange, workers gave up the right to appeal decisions concerning treatment, the right to claim diminished future earning capacity, and are subject to other "take aways." As was claimed with SB 899, the new bill will decrease "friction" (translation: litigation).
A stealth bomber streaks across the Sacto sky

As the legislative session drew to its two-year end, and many in the workers' compensation community were on their August vacation, a back room deal of stunning proportions took us by stealth. On August 10, 2012 we learned of proposed legislation, similar to the deal drafted in 2009, that proponents intended to stick into suspended legislation in the same "gut and amend" fashion.

The bill reminded the editor of the scandal in 2009 when it was discovered that a supposedly bi-partisan labor-management commission was secretly drafting legislation for the Republican caucus (see sidebar).

The bill also reminded the editor of a 1968 blockbuster.

CHSWC was working on this bill at least since 2009, as reported here.

As noted in that rant, "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." The current Director of the DIR was then the CHSWC Executive Officer. The "labor-management" negotiators for SB 863 are both long-time CHSWC members. It is believed the drafter of the bill is the CHSWC Acting Executive Officer.
An allegorical horror story

Here's an allegorical history of how the SB 863 horror was conceived and born, loosely based on Roman Polanski's 1968 opus, Rosemary's Baby. Sometime in 2009 a young woman meets "Mr. Right" and longs for marriage and children. We will call her "Rosemary." Mr. Right is Guy, a struggling actor.

In 2012, Rosemary and Guy move to the DIRectory Towers, a decrepit, even monstrous edifice known for its diabolical history, large apartments, and odd tenants. There they meet elderly next-door neighbors, the outgoing and eccentric Castevets: Minnie is nosy and pushy, Roman is pedantic. Guy is soon spending a lot of time with the Castevets while Rosemary is more interested is quality time alone with Guy.
Rosemary is eagerly awaiting a new permanent disability rating schedule. For some years the state had been collecting data to show how certain types of injuries diminished future earnings. The new schedule was to incorporate this data and produce fairer PD ratings.

Long overdue, required by Labor Code Section 4660 to be completed by 1/1/10, the new schedule was being held hostage for political reasons.
New Labor Code Section 4660.1 does away with diminished future earning capacity, so all that work CHSWC commissioned from RAND (at huge expense) is thrown out with the baby's dirty bath water.
When Guy announces it is time to have a baby, Rosemary is at first delighted. During a romantic dinner to get in the mood, Minnie arrives uninvited with chocolate mousse. Rosemary samples it then puts it aside, put off by its strange taste, but Guy talks her into eating more of it.

Rosemary feels sick and passes out. She has a strange dream where naked people, including the Castevets, surround her while a demonic presence rapes her. "This is really happening," she screams.

A few weeks later she learns she is pregnant. The Castevets interfere with her choice of doctor and insist she see one on their MPN. Minnie tells Rosemary she will prepare a daily drink recommended by the MPN doc.

The joy of expectancy dims when Rosemary suspects that she is drinking some poisonous substance, not the doctored Kool-Aid of Jim Jones's People's Temple in Guyana, but just as mysterious and frightening.

When injured workers and their advocates saw the initial drafts of the new bill, it left a decidedly bitter taste, like Minnie's mousse.
All is not right at the DIR Towers

Rosemary's pregnancy is harrowing, filled with pain and the growing suspicion that all is not right at the DIRectory Towers, that the neighbors and their friends are not benign. Rosemary's friend "Hutch," a kindly elderly man, suddenly falls ill and dies. He leaves proof for Rosemary that her neighbors are devil worshippers, and that she has been poisoned with tannis root, a foul-smelling substance that her MPN ob-gyn doc also reeks of.

At some point Rosemary gets to read the draft of the reform legislation and the full horror hits her. Not only is this bad for her baby, it will cost a fortune and ultimately become another obligation on the strained state budget (translation: the tax payer). Employers will howl at increased "user funding" necessitated by burgeoning bureaucracy.

When Rosemary realizes the MPN doc is in on it too, she seeks out the kindly Dr. Hill, who was originally supposed to deliver the baby, before the Castevets interfered.

Dr. Hill, an unwitting enabler, is convinced Rosemary is delusional. He contacts the MPN doc and hubby Guy, who come to take Rosemary away. She tries to escape but the MPN doc sedates her, and she ends up giving birth at home.

Rosemary realizes that the new bill will cost a fortune and ultimately become another obligation on the strained state budget (translation: the tax payer). Employers will howl at increased "user funding" necessitated by burgeoning bureaucracy.
Rosemary wakes up and is told the baby died. Guy cheerfully consoles her, saying they can try again soon. Distraught, Rosemary tries to rest but hears a baby wailing through the walls. She finds the hidden door connecting her apartment to the Castevets. She follows the sound of cries and whispers down the hall and arrives in their living room, where the coven is celebrating the birth.

Rosemary looks into the cradle, where her stolen baby is being rocked by one of the coven, and recoils in horror. "What have you done to it?" she shrieks.
A "Rosemary's baby" we hoped could be aborted or at least delayed, instead emerged, defective and deformed but alive and breathing on the final day of the legislative session. Now everyone has to live with this miscreant, at least until the legislators change the system again.
Roman tells her to rock the baby. Rosemary asks, "You're trying to get me to be his mother, aren't you? "Aren't you a mother?" he responds.

Rosemary wonders, "cui bono?" (the ancient equivalent of "follow the money") Who is profiting from this? Who will reap the benefits of this swollen legislative morass? How will the state agency responsible for the new agencies that the law creates manage? Shortly after Rosemary gave birth, the chief pediatrician resigned and there seemed to be no one managing the maternity ward with its new baby.

In the end, Rosemary does what a mother does: she nurtures this evil baby. She tries to heal it and feed it and love it despite its birth defects. She hopes and prays for a medical miracle that will cure this defective neonate and allow it to lead a healthy and wholesome life. That is what mothers do. They carry the hope for the next generation, as they carry the baby before its birth.
California Labor Federation Executive Secretary-Treasurer Art Pulaski stated: "Opponents of SB 863, many of whom profit from the system, have engaged in a campaign of misinformation in an effort to protect the failed status quo. Not only are the reforms proposed in SB 863 necessary, they’re literally a lifeline for the system and the workers it benefits…SB 863 tackles the toughest challenges facing the workers’ compensation system head on, providing fresh hope to injured workers that have suffered for eight years under the failed reforms of the Schwarzenegger Administration. It’s time for real reform that puts injured workers first. We urge the legislature to pass SB 863 today, sending it to Gov. Brown for his signature."
The process went to hell

No matter one's political bias or role in the workers' compensation system, every Californian should be dismayed by the process by which Rosemary had the baby. It undermined what had once been a good marriage. Rosemary despises her husband at the end, and when he says it was a small price to pay for the rewards — "Look at what we got in return!" — she spits in his face.

So why aren't injured workers and those who speak for them happy with this new baby? Maybe because they heard this hype before and discovered first-hand the lies and failed promises.

We should all be appalled that a constitutionally-mandated system that affects millions of people and costs billions of dollars could be dramatically and substantially changed without input from those who will suffer the most from it -- the workers. And without any input from those who provide services within the system, such as the doctors who treat injured workers. There were no careful studies of the actual cost of the intended and unintended consequences. There was no reliable data analysis, especially as the bill changed almost daily in the last few days of the session.

Creating more bureaucracy is never a good fix. Cabals, covens, conspiracies -- whatever you call it, it's still a back room deal that does not inspire citizens' trust and faith in their elected representatives. The process went to hell. Did it give birth to a monster or a wonderful child? Only time will tell.

To carry out the provisions of SB 863, three more agencies need to be created within the DIR, reams of new regulations need to be written – many on an emergency basis – and new staff needs to be hired.
Prenatal surgery

This time around, there were a few weeks during which the many voices of those affected by the changes — VIAW, CAAA, CSIMS, LatinoComp, etc — mounted a huge campaign. They fired off letters, met with legislators, staged protests. Their collective efforts mitigated some of the worst parts of the bill. Like prenatal surgery, a few birth defects were averted.

The collective efforts of advocacy groups mitigated some of the worst parts of the bill. Like prenatal surgery, a few birth defects were averted.
Gut and amend and rush to the floor

On August 31, 2012, the last day of the two-year session, both houses were urged to pass SB 863, even though few had read it or understood its contents. Ben Hueso, Assemblyman for the 79th District, rose in protest. "I can't vote for something I can't explain....Let's conduct ourselves with more honor and more dignity. Let's involve our community in our decisions."

A handful of other legislators also protested that they were being asked to vote for a lengthy bill they had not even had a chance to read, but in the end, all but a few voted in favor of it because Gov. Brown made it clear he wanted that bill. In yet another one of the unholy alliances that go on behind closed doors in Sacramento, injured workers were traded for pension and tax reform.

As Sacbee columnist Dan Walters noted, "Mention "process" to Capitol politicians and staffers and you often get a roll of the eyes. But process counts because it affects the legitimacy of the policy product and the credibility of those involved in it…Dumping 170-page bills on legislators' desks and demanding immediate votes stigmatizes what they do and feeds Californians' growing sense of alienation from politics and their cynicism about politicians."
So what is so bad about this bill? Only time will tell. Why not love it and nurture it, be like Rosemary and rock the cradle? My colleagues and others will be at the hearth, as will I, nursing the defective infant, all the while wishing it was born of a process we could at least respect.
We are in for another bumpy ride. As my colleague on the defense side of the bar said: "the workers' compensation community is about to hop aboard a roller coaster ride with twists and turns not foreseen and not intended."
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 MHarrisLaw@verizon.net www.workerscompensationcalifornia.com

Photo Credit: ©Ema Drouillard www.emadrouillard.com