It would appear that once a decade the Workers’ Compensation Appeals Board takes it upon itself to throw the workers’ comp system into a freefall panic. In 1996, this phenomenon manifested itself in the form of Minnear v. Mt. San Antonio College, a decision that expanded the calamitous treating-physician presumption of correctness to virtually all decisions by doctors. The rest, as they say, is history.
Or is it? Let’s add to the lexicon of infamy a new name – Almaraz v. Environmental Recovery Services, a unanimous en banc decision released upon an unsuspecting community this past February 3. In this decision – this unanimous decision – the Appeals Board determined that the AMA Guides were part of the permanent disability rating schedule and, because the permanent disability rating schedule is rebuttable, that the AMA Guides can also be rebutted.
By what, you may reasonably ask? Well, if the use of the AMA Guides “…would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability,” then the rater can basically decide what the appropriate level of disability he or she thinks is “fair,” regardless of whether it is related to the guides. Here we go again.
In 54 pages of deathless prose, the commissioners – all of them – took over a decade of effort by the business community to reform the workers’ comp system and threw it out the window. It was the judicial equivalent of doing brain surgery with a chainsaw – nothing left to save and a big mess on the floor. The decision defies logic, offends even the most basic notions of the rules of statutory construction, and superimposes the judicial whim of the Appeals Board on both the executive and legislative branches of government.
The law requires the permanent disability rating schedule to “…promote consistency, uniformity, and objectivity.” Apparently, this statement of statutory intent, made by the Legislature in which the Constitution vests “plenary authority” over the workers’ comp system, does not apply to the rebuttal of the rating produced by the schedule.
In other words, according to all the commissioners, there is a need for uniformity and objectivity unless a doctor thinks otherwise, then it’s whatever he or she thinks. Oh, really? Is there anything in the public debate over workers’ comp in the past decade – beginning under Governor Davis – that would lead anyone to think that the idea of promoting consistency and objectivity in ratings was not a primary concern of those who sought – and achieved – reform? Indeed, one can go back multiple generations and see in the legislative record the constant concern over the variability of ratings from one rater to the next. Even RAND identified this as a flaw in the pre-SB 899 system.
But now we have an exception that swallows the rule. The board’s decision can neatly be summarized by saying that an individual judge is the sole arbiter of what constitutes an adequate PD award – not the Division of Workers’ Compensation or the Legislature – subject to review by the commissioners. Once the board creates an alternative to the schedule, that alternative becomes the norm, when it invariably results in the payment of higher PD awards. Indeed, WCAB not only overturned the schedule, it basically nullified the law.
One need look only at the seminars already held by doctors, applicant lawyers and defense firms to see what has been unleashed. Unrepresented injured workers now have their settlements held up to make sure they are “adequate” under these new rules – though no one has a clue as to how to implement the board’s decision.
The upcoming appellate court battle over this will either be simple or epic.
Governor Schwarzenegger’s legacy of being an antitax crusader took a permanent hit this month as all sorts of taxes were raised to fill the gaping budget deficit in Sacramento. The other jewel in his crown—workers’ comp reform—took a serious, but not yet mortal, hit this month, too.
In the years that it will take for this abomination to be righted by the appellate courts, there will be a dark cloud over the system as the gathering revolution of uncertainty, and rising costs, rains down from WCAB.