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At a Thursday public hearing in Los Angeles, the acting director of the California Division of Workers’ Compensation, Carrie Nevans, indicated that there will probably be adjustments in the California permanent disability rating schedule this year.

The February 16 edition of Workcompcentral.com quotes Carrie Nevans as saying, “We are not planning on dragging this process out.”

During the last year, the DWC has been collecting preliminary wage loss data regarding workers rated under the AMA guidelines system applicable to workers injured after 1/1/05 (note: as of February 2007, the law is still unsettled as to which workers injured before 1/1/05 come under that schedule).

Several studies, including a study by UC Davis Professor Paul Leigh, showed results under the new rating schedule were as much as 50% (or lower) for most injuries. If true, that would mean that significantly less wage replacement funds were available to injured workers in California. The DWC has been doing its own study. The first part of the study has measured return to work rates under the new law. To see a summary of preliminary DWC results on that issue, you can click the following:
http://www.dir.ca.gov/dwc/ReturnToWorkR … kRates.htm

Within a few months, the DWC will unveil preliminary findings of a study comparing wage replacement rates under the “old” (i.e. pre-Schwarzenegger reform) rating schedule versus the new American Medical Association (AMA) impairment rating system.

The current permanent disability rating schedule, adopted after the 2004 California comp reforms, has been widely criticized as being inadequate. Critics have included not just injured workers and their attorneys, but also prominent comp defense attorneys such as Clifford Sweet of San Diego. The current schedule, adopted in 2004 by then-DWC Administrative Director Andrea Hoch (now legal affairs secretary for Gov. Schwarzenegger), is seen as suspect due to the lack of compliance with the statute’s requirement that the schedule be based on “empirical data” on worker wage loss.

But injured workers and attorneys should not be popping the champagne corks just yet. Nevans’ comments indicated that revisions under considerations might lead to downward adjustments for some types of injuries. It appears that the DWC may be focusing on comparing return to work rates and rating results for different body parts and the proportionality of wage losses (and ratings) between body parts.

All of this is currently quite murky. What methodology to measure wage loss impairment will be used? Will the study be scientifically valid? How much politics will enter into the study results? Will any changes in the schedule be retroactive to workers injured before the next schedule revision? Will the legislature conduct hearings on the schedule revision process? And how will this affect arguments that an inadequate schedule is subject to rebuttal? And what will the DWC do for workers who receive ZERO impairment under the AMA impairment rating schedule but, based on work restrictions, are not accommodated and allowed to continue working?

Undoubtedly, there is an army of lobbyists pouring over tapes of Thursday’s hearing to read the tea leaves on what is coming.

Julius Young
www.boxerlaw.com

Category: Political developments

Julius Young

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