Since its creation in 1993, the Commission on Health and Safety and Workers’ Compensation (CHSWC) has been in the eye of every workers’ comp storm. Its data, reports and recommendations have served as a template for reforms, and its less publicized work promoting workplace safety shows it has and continues to fulfill its mandate, if with a somewhat left-of-center viewpoint.
At times, its research agenda seemingly appears from nowhere, such as its dogged fixation on 24-hour medical care, the latest incarnation of this coming late in February, and times when its agenda seems to be driven more by political forces than stakeholder discussions. It is a fine and sometimes ill-defined line that the commission must not cross, but that line’s ever-changing boundaries make the crossing inevitable.
The business community has had an ambiguous relationship with the commission, largely due to the appointment process for its employer members. But it has been subject to less scrutiny recently, in large part due to the appointment to the commission of Sean McNally of Grimmway Farms. One of the progenitors of SB 899, McNally figured prominently in Joe Mathews’ book The People’s Machine – Arnold Schwarzenegger and the Rise of Blockbuster Democracy (Public Affairs, 2006), due to his role in promoting a workers’ comp initiative that ultimately led to the Legislature agreeing to the now-landmark changes in the laws of permanent disability and employer direction of medical treatment.
The yin to McNally’s yang is Angie Wei, the bright and most visible advocate for the California Labor Federation, AFL-CIO. Wei is the current chair of the commission, McNally the immediate past chair. Wei and McNally engaged in the discussion, memorialized by commission staff in both legislative language and cost savings estimates, in the waning hours of last year’s legislative session to determine whether a significant benefit increase could be enacted together with language intended to correct some of the abuses that have emerged since the 2003-2004 reforms were enacted. While that process ended abruptly, the commission work product has taken on a life of its own as though it enjoys an imprimatur of acceptance by key stakeholders in the system.
Whether it does remains to be seen, but employer and insurance industry advocates are scurrying to an alarming degree in January to make sure that they are on any bus leaving the station, lest they wind up under it.
One question not being asked that needs to be asked is whether this is the proper role of the commission to begin with. California’s Labor Code charges the commission to “… conduct a continuing examination of the workers’ compensation system, as defined in Section 4 of Article XIV of the California Constitution, and of the state’s activities to prevent industrial injuries and occupational diseases.” Facilitating a labor-management dialog for developing legislation doesn’t seem to fall neatly into that charge.
Conversely, while the commission has undertaken several studies of the insurance industry, its desire to publicly address issues with the Department of Industrial Relations (DIR) and its various divisions seems to prompt far less zeal. Because the commission is part of DIR, a certain and clear conflict of interest and politics exists, like it or not.
Given today’s economy, and reported failures to properly secure resources to help mitigate the effects of bankruptcy (such as Mervyn’s) on the payment of claims by the Self-Insurers’ Security Fund (SISF), the commission’s silence on issues with SISF and the Office of Self Insurance Plans (OSIP) speaks volumes. Its report on self-insured groups (SIGs) was notable only because if then-Assembly Insurance Committee Chair Joe Coto had not requested it, it likely would never have been done at all.
This is no criticism of advocates who sit on the commission. Private discussions between private interests looking to pass legislation are a critical part of the lobbying and legislative process. But when serving a public role, the breadth of their private discussions must be carefully examined so that the public process created by the Legislature is honored.
There is no question that commission members are well informed about goings-on at DIR. But it is equally clear that information does not make it into the public record or public debate except under the most unusual circumstances. That needs to end.
If the commission is to live up to its mandate completely, then it must do so independently of DIR, both from a policy and budget standpoint. There is much that stakeholders in the system, and policymakers, need to know. It should not be up to the Legislature to hold hearings on EAMS or Cal-OSHA Appeals Board, or to request a review of regulation of SIGs, to provide a public forum for concerns to be aired. Clearly, the Legislature can do this, but one would hope that a “continuing examination” of the workers’ comp system would include these issues, too.
Workers’ Comp Executive and others call on CHSWC, DIR, the Legislature and the Governor’s Office to remove the commission from DIR so that conflicts end, and so that the commission becomes the independent analyst and policy progenitor it was meant to be.