System Never Intended to Make Worker Whole

Saturday, June 16, 2007 | 1

By Paul Salisbury

In regards to WorkCompCentral's June 12 article titled "CAAA Wants Awards for Zero Ratings," the argument appears to be that the current rating schedule using the American Medical Association (AMA) guidelines does not adequately compensate injured workers in the sense that permanent disability awards do not adequately compensate for the loss of future earnings.

Although I understand the California Applicants' Attorneys Association's position, it was never the intention of workers' compensation to fully compensate or "make whole" an individual who sustained an injury arising out of and occurring in the course of their employment.

Harking back to 1980 when I was required by Employers Insurance of Wausau to sit through a 12-week workers' compensation class taught by Judge Marmor, I was taught that the workers' compensation system was created for the primary purpose of providing injured workers with medical treatment and temporary disability benefits while they were recovering from an industrial injury.

However, as workers' compensation was a "no fault" system, there was never any intention of making an injured worker "whole" as you would in a civil litigation forum where the fault of the defendant was established. Instead, employers agreed to a "no-fault" benefit system in exchange for a permanent disability rating schedule that was always considered to be substantially lower than awards issued in civil court for the same injuries.

Please note that this observation is not intended to be a criticism or affirmation of the past or current Permanent Disability Rating Schedule. Instead, my point is that people must remember that since the workers' compensation system is a legislative creation, we first need to consider clearly setting forth a positional statement as to what the workers' compensation system should be.

If, as CAAA argues, the workers' compensation system should make an injured worker "whole" by computing permanent disability benefits based on a lifetime loss-of-earnings formula, maybe we need to consider changing the provisions of workers' compensation law, which finds liability for an employer or insurance carrier irrespective of fault.

Paul Salisbury is a defense attorney in Camarillo, Calif. -------------------------------

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