The 2008 session of the California Legislature does not lend itself to significant legislation on workers’ comp issues. The Legislature will be preoccupied with trying to deal with a $14 billion budget deficit in an election year. But it can be logically expected that leadership will once again attempt to get the governor to budge on permanent disability benefits. Beyond that, though, reforming the reform expectations should be diminished. But there will be issues of import.
One particular issue, in the spirit of “post-partisanship,” should be addressed promptly. This is the confirmation of Carrie Nevans as Administrative Director of the Division of Workers’ Compensation. Workers’ Comp Executive enthusiastically endorses Nevans’ confirmation.
Her tenure began with a system high on expectations and low on facts. Through this period, she has shown an unwavering fairness to both employers and workers, to business and labor, while maintaining fidelity to the spirit and the letter of AB 227, SB 228 and SB 899. Nevans also has brought increased transparency—and therefore credibility—both to the process and to the Department. Increased transparency’s main benefit is credibility. Special interests have been able to see the system operate, and for the most part, to accept the outcomes.
As has been the case since the reforms of 1989, the Legislature has consigned most of the system’s details to the Division and hence to Workers’ Comp Appeals Board.
While WCAB has lagged in exercising its authority over judges to curb litigation abuses in the system, the Division, under Nevans’ leadership, has moved forward to implement and enforce the law. This is a refreshing approach, given that some judges still appear to be in reform denial.
Recognizing that workers’ comp is a system where no stakeholder is entirely pleased with outcomes, the administrative director has called out payers when they irrationally deny benefits with the same zeal as she decries the efforts of applicant attorneys to judicially unwind core elements of SB 899. The Division’s spirited and well-reasoned defense of the permanent disability rating schedule is a template for the appellate courts, and exposes unfounded challenges that would return PD to the litigation machine that existed prior to SB 899.
The complexities of the system remain up to the Legislature to resolve. Delays caused by providers who continue to resist changes made by the Legislature in SB 228 and SB 899, extreme measures that judges take to undermine these reforms, and frustrations surrounding potentially insurmountable barriers to effective return-to-work programs are beyond the ability of the AD to resolve.
Nevans’ confirmation should not—indeed must not—become a proxy battle for all who are disenchanted with the current state of the law. What she has been given the authority to do she has done promptly and intelligently. We hope that how well she has carried out her responsibilities will be the sole criterion the Senate Rules Committee bases its decision on.
The impending budget fiasco places many things on the table to get the requisite votes to send up a spending plan to the governor. If 2007 was a terrible year by budget standards, just wait for 2008. To the extent the president pro tem wants leverage to address the PD benefit issue, there are ample opportunities. But denying confirmation and forcing a change in leadership at the Division of Workers’ Compensation should not be part of that horse trading. This is one of those rare opportunities for policymakers to do the right thing with no strings attached. Rarer still is when this is within the realm of workers’ comp.
There is nothing to gain and much to lose if Nevans is not confirmed or is allowed to languish as a “364-day AD.” The clock is ticking.