October 14, 2008—a day that will live in workers’ comp infamy. That is the day that Carrie Nevans will no longer be administrative director of the Division of Workers’ Compensation. The common wisdom is that Nevans’ confirmation was held hostage because Senate President Pro Tem Don Perata wanted to make certain that changes to the permanent disability rating schedule were in fact going to be made—changes that still appear to be languishing in the Division of Workers’ Compensation at this very moment. No changes—no AD. Seems like a simple enough equation.
Except that it is not as simple as all that. By all accounts, Nevans was a very good AD. Implementation of the reforms of 2003-2004 has yet to be completed. What has been done to date clearly demonstrates that not every good idea that got into the final legislative work product over four years ago penciled out according to expectations when translated into the real world.
In other words, there is not only an unfinished agenda – such as the permanent disability rating schedule – there is also a “back to the drawing board” agenda necessary to improve regulations – such as those governing Medical Provider Networks – that were adopted early in the reform process.
Should all of this come to a screeching halt? As a practical matter, it may not. This is not the first time in the history of state government that a nominee was not confirmed and then reappeared in a position in the same agency to oversee his or her successor. It is also not the first time that a revolving door has been installed in the Division of Workers’ Compensation by the Senate Rules Committee.
But what makes this different is that Nevans was clearly caught in the crossfire between a president pro tem who wanted to see permanent disability benefits increased and an administration that refused to allow an appointment to be held hostage to leverage something—anything—else. This was not a concern over competence or accessibility. This was not a question of neglect of the Division or of its mission to oversee a ridiculously complicated bureaucracy created under the mantra of “reform.” In other words, the action of the senator—or more accurately, inaction—was not on the merits of the appointment. It was on the perceived merits of the policies of the governor.
Proponents of increased PD benefits have essentially brought the legislative process to a halt when it comes to workers’ comp issues. With the rejection of Nevans as AD, they apparently also want to bring the administrative process to a halt. This benefits no one. There is too much left to be done to bring uncertainty to the Division of Workers’ Compensation.
Much of that work benefits injured workers every bit as much as it does those who have to negotiate the morass that this system has become. It is also too early to begin a scorched-earth policy to unwind as much of the reform as possible in anticipation of a new governor in 2010.
If anything should be learned from a decade ago, it is that those who seek to return the workers’ comp system to a litigious, insensitive, bloated process that forces employers and employees alike to languish on the sidelines while doctors, lawyers and judges battle back and forth have patience. If anything should be learned from five years ago, it is that those who cannot tolerate a return to the status quo ante SB 899 have enormous resources and, when engaged, can hold their own quite well in the face of an effort to turn back the clock.
The rejection of Carrie Nevans’ nomination, it would appear, has the faintly burnt smell of an opening salvo. If that is the case, then it hurt the wrong people and therefore truly missed the mark.