CVII Not a Creature Was Stirring

By: Publius

Seems a bit early to start into Christmas analogies, but given the lack of interest that California workers’ comp issues seem to generate in Sacramento, it may well be appropriate to fast-forward to December. While there is no shortage of meetings, hearings, and workshops, these various forums seem more suited to identifying as-yet ill-defined problems rather than generating long-term, consensus-driven solutions. Meanwhile, the Division of Workers’ Compensation offers a host of regulatory initiatives, some of which strike even more fear into the hearts of the payer community. The appellate courts, making sure the wheels of justice grind slowly, except in the Guzman case, seem to feel no compelling interest in getting Almaraz and Ogilvie queued up for argument.

In the real world, confusion and occasional insanity continue to vex claims administrators, defense attorneys and actuaries. The division continues to provide ad hoc guidance, working its way through the system with emails, speeches, and conversations. Depending on whom you talk to and when, the answers are different.

Injured workers and their advocates decry SB 899, even while applicant attorneys embrace the nonsense – and money – that Ogilvie brings to the table. Doctors hate utilization review and, as long as workers’ comp judges continue to force illegal liens down payers’ throats or claim they are not there to enforce contracts (but they can abrogate them, or so it would seem), few incentives remain to play by the rules.

Through the prism of an almost fatalistic notion that we need more reform – or is that re-re-re-reform – there seems to be an urge to build yet a newer and better mousetrap to try to catch the mouse that is trying to be good instead of the rat that is spreading pestilence. 

 Seeds of Weeds

While decades-long efforts to make the workers’ comp system more responsive to the needs of business and labor have often been frustrated by judges or regulators whose vision of the law is far different from the vision of those who advocated for its change, one thing is certain: When it comes to workers’ comp, the law of unintended consequences is always enforced. Words on paper are clearly of critical importance, but it is equally true that the more we parse this system with almost microscopic nuance in the laws and regulations that emerge from Sacramento or Oakland, the more we sow the seeds of ambiguity – from which sprout the weeds that routinely issue from the Appeals Board. It is convenient to blame the Legislature for not passing “good” laws, but those whose task is to enforce those laws have at best a checkered record enforcing even the clear ones.

And thus all’s quiet in Sacramento. Complexity created in this multibillion-dollar system has reached a point where it almost – emphasis on almost – defies rational thinking. The idea that the next set of words will be the last, best, final reform is an idea that defies both history and logic. The workers’ comp system has become akin to the Balkans after Marshal Tito. It is a conflation of Titanic and Groundhog Day, always embarking with great expectations and always hitting the iceberg. If this cycle, which started in 1989, is to come to an end, then the “system” as we know it needs to come to an end, sealed up, and run off. What comes in its place needs to focus on the realities of the 21st century and not the abuses of the 19th.

Given fiscal challenges the new administration will face in 2011, it is in everyone’s interest to make sure we do not repeat the mistakes of 1998. There is an opportunity to get things right, but that opportunity will founder on yet another iceberg if it is simply another exercise in who has the most leverage at the moment. 



PUBLISHERS' NOTE: Publius is written by a consortium of writers, sometimes internal, most frequently external. Workers' Comp Executive believes that it has the responsibility to air most viewpoints and welcomes the comments of its community on any subject. Publius does not necessarily represent the views of this publication.