Somewhere along the way, the fuse that was supposed to ignite the dynamite that was supposed to blow up the box that is the Commission on Health and Safety and Workers Compensation was snuffed out. Granted, the planned demise of the Commission was consigned to the same scrap heap as was most of the California Performance Review. But that does not explain all the intrigue surrounding what is supposed to be a forum where employers and labor can discuss and resolve pressing issues in the workers compensation system. And now the administrations focus is slightly astigmatic.

As originally conceived in the 1993 workers compensation reforms, the Commission was one of those uniquely political offshoots of what is nationwide a fairly sound propositionif you get employers and labor in the same room and kick the politicians and everyone else out, then possibly good things will happen. Oregon, for example, embodies that concept perfectly. Its Management/Labor Advisory Committee (MLAC) is a clearinghouse for most legislative concepts in the workers compensation system. An offshoot of the original working group that reformed their system in 1991, MLAC has pretty much kept the wolves at bay. Oregon is on its second decade of sustained quality in its workers compensation system, despite the onslaught from those who were left out of the room when the system was reformed. There may be a lesson to be learned from that in California.

Part of the uniquely California aspect of the Commissions membership is its appointment process. Unlike MLAC, or even unlike the labor and employer representatives to the governing committee of the Workers Compensation Insurance Rating Bureau (WCIRB), appointments to the Commission are all over the map. There are supposed to be four employer and four labor representatives. The governor appoints two of each, the speaker and the Senate president pro tem each appoint one of each.

Very early on there was a realization in the Democratic caucus that the term employer can encompass virtually anyone, including a law firm representing workers compensation claimants, so applicants attorneys, the very embodiment of whats wrong with the system, got a seat at the table. Labor representatives are basically labor representatives, making those appointments less susceptible to creative thinking. All and all, the appointment process leaves the business community feeling out in the cold.

There is also the question of what the Commission in fact does as a group. Over the years, issues have been raised about the prodigious output from the Commission, which appears to occur someplace other than what are usually at best perfunctory meetings. Nevertheless, the Commissions research agenda has been enormous and, depending on whom you ask, incredibly frustrating. It is correct to state that many reform issues have been brought to the fore because of Commission research and policy positions. These include our new definition of permanent disability, outpatient surgery cost containment, a Medicare-based official medical fee schedule, debunking the notion that the now-repealed mandatory vocational rehabilitation program was benefiting injured workers, and the new audit program. Like it or not, the Commission is one driving force behind workers compensation reform. But whether reform is always driven in the right direction is the subject of rigorous debate now in its second decade.

Under the stewardship of Governor Davis, the Commission was perceived to be more closely aligned with labor and the Democratic majority. Regardless of whether this is an accurate perception, it has added to Republican skepticism about the Commission.

It is fair criticism, however, to note that the Commission seems to stand poised at the ready whenever policy committee chairs or leadership want information on workers compensation issues. That became painfully obvious, starting with AB 749 (Calderon) and working its way through AB 227 (Vargas) and SB 228 (Alarcon) drafting. Indeed, when reform took on a life of its own due to the impending recall, even many in the business community embraced both the Commission and the Democratic leadership, urging passage of AB 227 and SB 228much to the frustration of Republicans.

Workers compensation played a critical role in the recall. The recall (and the threatened workers compensation initiative) played a critical role in the passage of SB 899 (Poochigian). The Commission also has its fingerprints on many elements of SB 899. Regardless of feelings about the Commission in the administration or in minority caucuses, the Commission still has an ongoing role to play in the workers compensation system. Like most of the rest of the California Performance Review (CPR), the effort to blow up the Commission failed.

Now the Commission awaits new members to be appointed by the governor, and the administration waits for some inexplicable reason to make its appointments, including an employer appointment.

Meanwhile, the research agenda moves forward. New data mean new efforts to reconfigure the controversial permanent disability rating schedule, ostensibly in an effort to bring the schedule more in line with its statutory intent. That Commission effort has met, not surprisingly, with a chilly response from administration and employer representatives. In addition, the Commissions alter ego, RAND, is trolling for the opportunity to develop evidence-based treatment guidelines. If that necessary effort is consigned to RAND, instead of say a medically qualified research institution, such as the Mayo clinic, then what?

Choosing RAND will leave the two pillars of the workers compensation systemdisability payments and medical treatmentin the hands of a left-leaning private research corporation under contract with the State of California. While alarming, it can be considered no less alarming than what politicians have done to workers compensation over the past 30 years.

What the administration wants for the Commission is best characterized as abolishment. Appointing representative employers to the Commission also would validate the Commission, which is perhaps a policy conundrum the administration has yet to reconcile. But this angst is misdirected. Athough the perceived evils of the Commission and its staff are the stuff of hand-wringing within the Governors Office and among various employers and their trade associations, this focus is at the expense of the real gathering storm in the workers compensation system.

Ironically, recent reforms have united applicants attorneys and vocational rehabilitation providerstwo of the bigger losers in the reform legislationin an attempt to turn SB 899 into a real wage loss system. Already, employers, insurers, and their attorneys are getting letters to fill out worksheets to prove pre- and post-earning capacities.

This is part of a well-orchestrated effort to turn SB 899 on its ear and make it a wage loss system for purposes of permanent disability. That assault is what needs to be frustrated, not whether a statutorily mandated employer-labor Commission is perceived to be off the reservation.