Governor is Acting Above the Law

By David J. DePaolo

Happy New Year to everyone except the people of the State of California.

For it is the people who have elected a top public official who has decided that he, and his administration, is above the law – laws that he and the administration put into effect.

I am talking, of course, about Labor Code Section 4660, and the promise of Gov. Arnold Schwarzenegger's administration since 2004 that the gutting of injured worker permanent disability benefits would not only be reviewed and examined, but adjusted to account for the halving of the value of this important social safety net.

The administration says that now is not the right time to adjust the permanent disability rating schedule because the economy is in the tanks and that adjusting the schedule would put an unnecessary, undue burden on employers.

Since when does Labor Code 4660 permit discretion in the revision of the schedule?

The administration had no problem with interpreting the mandatory language of 4660 when it came to arguing that the “schedule shall promote consistency, uniformity, and objectivity” (and still apparently believes this language to be self-evident based on Department of Industrial Relations Administrator John Duncan’s briefs in Almaraz/Guzman).

The administration had no problem with the mandatory language in support of the phrase “shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule.”

The administration was apparently quite happy with court rulings that recognized that “shall” was mandatory in reference to the 2005 schedule being applicable to all disability determinations that were not previously the subject of a declaration of permanent and stationary prior to the 2005 schedule.

And the Division of Workers’ Compensation was good to comply with the law and give us a revised schedule in compliance with 4660(e) (“On or before Jan. 1, 2005, the administrative director shall adopt regulations to implement the changes made to this section by the act that added this subdivision”).

But now we’re told that “shall” doesn’t apply if the government doesn’t want it to apply.

Students of math and English, let’s review:

4660(c): “The administrative director shall amend the schedule for the determination of the percentage of permanent disability in accordance with this section at least once every five years.”

The original schedule amended per the April 2004 edition of 4660 was made effective Jan. 1, 2005. That plus five years equals 2010. Okay, so the math seems pretty clear – five years means that the date by which the schedule shall be amended would be Jan. 1, 2010.

Maybe the problem is the interpretation of the English language?

“The administrative director shall amend the schedule.” Seems pretty clear to me – last time I looked up “shall” in the dictionary it meant “must” in the context of laws.

The duty to amend the schedule under 4660 falls on the administrative director – an appointee of the governor.

I like Carrie Nevans. I will publicly state that I believe she has been the most effective administrative director DWC has had since I started in workers’ compensation 25 years ago.

But the law is the law. The law states that the schedule shall be amended.

So, either Carrie is breaking the law, or her boss, Mr. Schwarzenegger, told her to break the law. At some point the buck stops. The people of the State of California have a right to know who is responsible and why the laws of the land are not equally enforced.

So I invite anyone from the administration to take advantage of the First Amendment and to answer one simple question in response to this editorial – who made the decision to not amend the PDRS by Jan. 1, 2010?

David J. DePaolo is founder and chief executive officer of WorkCompCentral.