A Bad Day for Applicants' Attorneys
Friday, June 6, 2008 | 0
By Julius Young
Was a crosswalk study required? Huh?
Did chiropractors stage a major coup by hiring former California Supreme Court justice Armand Arabian to argue their argument that the 24-visit chiropractic treatment cap is unconstitutional?
No and no.
Two of the major California workers' comp mysteries appear to have been resolved yesterday.
After hanging onto the case for a year, the WCAB released its en banc decision in Scott Boughner vs. Comp USA. For those unfamiliar with the story, here's a thumbnail history.
At the trial level, San Francisco Judge Jacqueline Duncan had ruled that the Schwarzenegger administration's 2005 permanent disability rating schedule (adopted in late 2004 after the May 2004 SB 899 comp reform) was invalid. Boughner (a most pleasant fellow who walks slowly with a painful limp), ably represented by San Francisco attorney Jeff Greenberg, would therefore not have been governed by the 2005 schedule. In her decision, Duncan cited a number ways the adoption of the schedule by then DWC Administrative Director Andrea Hoch failed to comport with statutory requirements.
Its a case that has been closely watched by worker advocates and the industry. The 2005 PDRS now governs many pre-2004 injuries and will continue to apply to injuries until the adoption of a new schedule later this year or perhaps even in 2009.
The WCAB en banc decision rejected Judge Duncan's approach, overturning her decision that the 2005 PDRS is invalid. Specifically, the decision finds:
- That Judge Duncan was in error in finding that Hoch had not used empirical data from the Rand study in formulating her 2005 rating factors.
- Neither the deposition testimony of Rand's Robert Reville or testimony of insurance consultant Mark Gerlach were sufficient to rebut the presumptive validity of the PDRS.
I expect Greenberg to seek a writ, thus trying to take the issue to the California Court of Appeal. But it's quite likely that this is an issue that the California appellate reports won't be anxious to jump into. Part of the problem is that there's a high legal standard for courts to declare administrative regulations invalid.
So at the end of the day, thousands of workers may be stuck with the 2005 PDRS. And no "crosswalk study" to translate restrictive "impairment" rules into a "disability" rating sufficient to adequately compensate disabled workers.
In yesterday's other news, hiring a Supreme Court alum to do your oral argument is no guarantee of success. The 1st District Court of Appeal refused to find the 24 visit chiropractic cap unconstitutional. Here's the case, Jose Facundo-Guerrero vs. WCAB and Nurserymen's Exchange.
Not a good day for workers and doctors. California courts are generally making it clear that they are loathe to interfere with the 2003 and 2004 comp reforms. If there's to be relief, it likely needs to be done at the legislative level, perhaps in 2010 and beyond.
Julius Young is an Oakland applicants' attorney who writes a blog on workers' comp issues, http://www.workerscompzone.com/ This opinion column is reprinted with is permission.
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