Dirk Stemerman
I n a study published in the April issue of the Journal of Occupational and Environmental Medicine, UC Davis researchers found that workers' compensation insurance is not used nearly as much as it should be to cover workplace illnesses and injuries. Approximately 80 percent of these costs are paid by employer-sponsored health insurance, Medicare, Medicaid, Social Security, employees and other payers. The study concluded that this cost-shifting leads to artificially low workers' compensation premiums that should be used to cover wage replacement and medical care for employees injured on the job.
For the last decade, the name of the game in California has seemingly been to increase the 80 percent figure by making it tantamount to financial suicide for a worker to navigate the workers' comp system. And if the worker can't be snuffed out by financial means, insurance carriers fall back on medical means of slow torture, akin to death by 1,000 cuts.
Previous workers' compensation reforms left injured workers staggered but still standing. Gov. Gray Davis signed SB228 and AB227 into law in 2003 which established medical utilization review and gutted job retraining. In 2004, Gov. Arnold Schwarzenegger signed SB 899, which cut disability compensation by over 50 percent and established company doctors. As a result, workers' comp insurance premiums have fallen by 60percent since 2004.
Now, the legislature has been handed another gift-wrapped bill that goes even further.
SB863 proposes to eliminate the ability of impartial agreed medical evaluators to resolve treatment disputes ? yes, disputes between the insurance network treating doctor and the insurance company medical reviewers.The bill also hits injured workers in the pocketbook. In exchange for purported increases in disability compensation ? $700million by some spurious estimates ? $1.4 billion would be cut from the system, all on the backs of injured workers. And the claimed benefit increase is nothing more than a paper tiger, since the method by which disability compensation is determined is slated to be eliminated.
Since the 2004 cuts, workers have had to prove their disability to company doctors; under the proposed bill, that company doctor won't even have a stethoscope.
Proposed cuts include no longer considering an injury's crippling effect on a worker's future earning capacity; ignoring the effect of an injury on older workers; discounting any psychological damage from physical injuries; and worst of all, giving the insurance company total control of worker treatment.
Representatives from big labor have been crafting legislation with several large employers since April, but that news broke only last week, and the bill surfaced only this week. All by design of course, as the legislative session comes to a close on Aug. 31.
Worker apathy regarding workers' comp is profound. No one ever thinks they'll be hurt at work and many think people injured on the job are malingerers. But when big labor uses that apathy to cut a deal with big business that hurts workers, well, as the saying goes, "With friends like these, who needs enemies."
Any bill that doubles down on draconian cuts by putting a dollar in a worker's front pocket only to take two dollars out of their back pocket, is inherently reprehensible. To contact your legislator, see www.legislature.ca.gov.
Dirk Stemerman is a lawyer with Rucka, O'Boyle, Lombardo & McKenna in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Mail queries to "On the Job," c/o The Monterey County Herald, Box 271, Monterey 93942.
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