Funny thing about the weather around the Sierra Nevada, it seems as though at anytime during the year a freak storm can come up and just like that there is snow all over the place. It is especially disconcerting when you are in a "white-out" where the snow is falling so fast you can't see where you are going to, or coming from for that matter.

There's a kind of blizzard going on in San Francisco these days, only this "white-out" is in the form of paper. Lots of paper. Stung by their failure to derail the confirmation of Administrative Director Andrea Hoch, labor and applicant attorneys have independently filed requests before the Supreme Court to repeal the now permanent permanent disability rating schedule on the grounds that it provides woefully inadequate permanent disability benefits and it fails to meet the requirements of SB 899. The Court has already summarily rejected the filing from the Labor Federation. The applicant attorney's effort should suffer a similar fate shortly.

Is it getting cold outside?

It would be easy to dismiss these latest legal press releases as yet another complaint from those who must now accept the consequences of their years of excess, especially in the form of AB 749. But there is more to these suits than yet another run to the court house. Regardless of their merits, both suits raise the intriguing proposition that at some point in time benefits may be so inadequate as to be unconstitutional. The applicant attorneys' suit labeled benefits prior to SB 899 as "already inadequate" even after the massive increases in AB 749 (and increases in SB 899 as well), so it is a bit difficult to understand how inadequate benefits become constitutionally infirm under the theory that they are more inadequate, especially as it appears central to their theory that SB 899 actually opens the door to an entirely new way of creating "adequate" benefits that the old system did not allow. Actually, it's not hard to figure out at all given that the attorneys are the primary loser in the high stakes reform game that has gripped the capital since the election of Gray Davis in 1998. It is precisely for that reason, it is precisely because the attorneys institutionally have turned a blind eye to the waste and abuse of the prior system, that their indignation rings so hollow now.

Seems to be clouding up a bit, doesn't it?

It is even more amazing that they are now extolling the virtues of RAND's eternal study of PD benefits, a study that will not be finalized during the lifetime of anyone reading this article. It is as though the Legislature, indeed the entirety of state government, somehow ceded its responsibilities to the Malibu Marvels at RAND and now that there is even a hint that they are not the ultimate arbiter of permanent disability it is incumbent upon the judicial branch to tell the executive and legislative branches to, in essence, butt out. Somehow I don't think the Supreme Court views the world that way.

A few flakes coming down?

What is even more fascinating is the concept that somehow the Legislature intended there to be a wage loss system to compensate injured workers for permanent disability. Don't try this leap of faith without a safety net. Buried beneath the references to reports and depositions is the request that the Court step in and do what RAND recommended - but the Legislature did not enact - set forth a mechanism by which benefits will be made adequate, as defined by two-thirds of the individual worker's weekly wage prior to injury.

Coming down a little harder now - may want to put the SUV in 4-wheel drive.

The Court faced with a number of options embraced maxim of judicial restraint, which in this case was very easy to exercise when it refused to hear the labor petition. The remaining petition, like the first, is essentially trying to elevate a few studies, and of course only the ones that support their position, whose authors have not been subject to cross-examination and whose methodologies have not been critically reviewed, to the status of evidence. The petitioners in both cases are institutional representatives who are arguing that the new schedule is facially unconstitutional and infirm for a number of other procedural reasons. In both cases, the petitioners are using press releases and anecdotal comments to establish legislative intent - an exercise the Supreme Court has already said doesn't work in a number of other cases.

What the petitioners are really hoping for, however, is to test the limits on the Court's interpretation of SB 899's new PD system, both as a constitutional issue and one of statutory construction. The issue of benefit adequacy goes beyond the schedule, for once the "adequacy" genie is out of the bottle there are a number of statutes that come into play and the Court could well be in the position of considering whether a massive benefit increase is required. In other words, labor and the applicant attorneys could obtain what even they were reluctant to ask for in AB 749 - a full blown wage loss system that requires replacement of two-thirds of the injured worker's pre-injury wage subject to a maximum wage that is necessarily far higher than that in current law - especially for the bulk of PD claims.

If, however, all they accomplish is to have the Court agree that the RAND cross-walk needs to be built and built soon, they have accomplished their objective of having a tolerable level of benefit inadequacy, tolerable being defined as providing roughly the same income to attorneys as did the previous schedule. This won't happen in the current round of litigation, and it may well never happen. That, however, won't stop the attorneys from trying. Ultimately, however, what those disgruntled with SB 899 are asking of the courts is a remarkable level of intervention. They would do well to remember that it is the Legislature that has the plenary authority over this system. Unfortunately, this is not likely to happen as we brace for yet another blizzard of lawsuits.

White out.