Injured Workers Unhappy as Brown Looks to ‘Broad’ Reform

Injured Workers Unhappy as Brown Looks to ‘Broad’ Reform

By Greg Jones , Western Bureau Chief

California’s 2011 legislative session started with injured workers thinking a newly-elected Democratic governor would restore benefits slashed by the previous Republican administration. For business, there was concern the hard-fought reforms of the early 2000s would be gutted.

Gov. Jerry Brown ended all speculation on Friday, signing into law 10 bills business supported, or at least didn’t oppose. At the same time, he vetoed four bills opposed by employers and supported by labor that would have carved into some of the provisions of reform legislation passed under former Gov. Arnold Schwarzenegger.

Brown passed bills to control the cost of compound drugs and vocational experts, crack down on illegally uninsured contractors and improve data reporting to better monitor the workers’ comp system. He killed legislation supporters said would improve return-to-work times, prohibit discriminatory apportionment decisions and allow injured workers to collect additional temporary disability benefits beyond the statutory 104-week cap when recovering from surgery.

Jesse Ceniceros, president of Voters Injured at Work, said on Monday that he wasn’t disappointed by Brown’s actions. Instead, he said he was disgusted the governor didn’t do anything to help injured workers.

“What was the sense of replacing a Republican with a Democrat if he’s just going to do what the Republicans tell him to do?” Ceniceros said. “It’s as though we didn’t get rid of Schwarzenegger.”

Jason Schmelzer, chief lobbyist for the California Workers’ Compensation Coalition, praised the governor.

“There’s room for the governor to gloat,” Schmelzer said. “He did a good job of weeding through the issues and signing the good stuff and vetoing the bad stuff, at least according to us, and we think he did just fine.”

Schmelzer said the governor signed only bills where opposing sides were able to work together to eliminate most or all opposition before legislation landed on his desk. He vetoed bills that lacked a consensus.

“It’s probably the right kind of approach,” Schmelzer said. “Where everybody agrees these are uniformly good things, go ahead and go with those. But where there are serious questions about whether something is a wise idea, I think a veto is the best choice.”

Brown didn’t entirely slam the door on injured workers. In veto messages for two bills that intended to increase benefits, he mentioned his desire to find cost savings to offset any benefit increases. His veto message on AB 211 by Gil Cedillo, D-Los Angeles, which would have made supplemental job displacement vouchers available to workers earlier in the claims process says he wants “comprehensive reform.” In his veto of AB 947 by Jose Solorio, D-Santa Ana, which would have allowed workers recovering from surgery to collect temporary disability benefits for up to five years, the governor said reform needs to be done “on a broad and balanced scale.”

Brad Chalk, president of the California Applicants’ Attorneys Association, was upset that Brown vetoed the apportionment bill CAAA sponsored, AB 1155 by Luis Alejo, D-Salinas. He did find a small victory in the veto message that says the bill would not change existing law, because courts already recognize that apportioning to protected classes, including race, gender and nationality, is prohibited.

Chalk said he would consider including the veto message along with documents sent to physicians making apportionment determinations to remind them that genetic characteristics are off limits. A small positive, he noted, because it would help only injured workers who are represented by an attorney.

Apportionment determinations that include reference to race or gender or other prohibited classifications are litigated when a worker is represented, but Chalk said that isn’t the case when an injured worker doesn’t have an attorney.

“I know that discrimination is occurring, and it occurs more often when they don’t have an attorney,” he said.

Chalk said he looks forward to discussions about more comprehensive reform proposals, but Ceniceros is not as thrilled.

Ceniceros said while stakeholders try to hammer out their differences on the elements of the system that need to be reformed, injured workers are still left struggling with education vouchers coming too late to be of any use in retraining and inadequate benefit levels.

He said these problems have been put off for almost eight years, and he doesn’t understand how or why Brown would make injured workers wait at least another year to improve the system.

“The injured workers are a piece of meat thrown into a pond of piranha,” he said. “All you get at the end of the case are the skeletal remains.”

Ceniceros is also pessimistic that stakeholders will be able to put together a comprehensive reform proposal within a year.

Jerry Azevedo, spokesman for the Workers’ Compensation Action Network, said Department of Industrial Relations Director Christine Baker’s knowledge of the workers’ compensation system from her time with the Commission on Health and Safety and Workers’ Compensation (CHSWC) might result in stakeholder discussions that move along more quickly than they have in past years. Brown appointed Baker to head DIR in March.

“If she were to be advising the governor on where to go, she may know how to kick start that process,” he said. “It may not be going back to square one.”

Schmelzer said the basic frame for reform discussions has already been set. Labor wants to increase benefits, and employers aren’t opposed to that — they just want to do it in a way that is sustainable, he said.

“We don’t want to continue the behavior of one side waiting until the other side can’t fight back and then rolling them,” he said. “If we can increase permanent disability benefits and offset those costs, that is a sustainable deal and something we can base future actions on.”

Chalk said the applicants’ attorneys have talked with Baker several times about possible ways to cut costs and offset an increase in permanent disability benefits. He would not tell WorkCompCentral what proposals the attorneys proposed.

“It’s back to consensus-building mode,” he said. “We’re disappointed, but happy to help solve the problems with a major reform package.”