How Recent Changes in Workers’ Compensation Law Have Damaged Injured Workers
The so-called “workers’ compensation bargain” has been a part of California law since 1911. The “workers’ compensation bargain” was designed to provide a no-fault system which guaranteed relatively swift delivery of medical and disability benefits and limited damages in exchange for the workers’ relinquishment of the right to sue their employers in tort for unlimited damages, a fault system. Cole v. Fair Oaks Fire Protection (1987) 43 Cal. 3d 148.
Based on recent reforms in workers’ compensation many workers, and those who represent them, believe that employers continue to receive the greater benefit from the “workers’ compensation bargain”.
Les Miserables, the historical French novel by Victor Hugo, as we all know, has been reduced to a Broadway play and is now on the silver screen as a musical. Injured workers have heard a similar tune, the “miseries” of the California Workers’ Compensation System. These “miseries” are caused by draconian changes (lightly referred to as reforms) particularly under SB899 promoted by Governor Schwarzenegger in 2004 and subsequently by Governor Brown under SB866 including:
• A reduction in permanent disability monetary benefits between 40% to 75%;
• No right to judicial review of insurance company denials of medical treatment recommended by the treating physician;
• Significant reduction in penalties for unreasonable delays in furnishing medical and compensation benefits;
• The elimination of the right of the disabled worker to secure their own medical legal evaluation at the carrier’s expense;
• A two-year limitation of the right to receive temporary disability (wage replacement);
• Significant procedural obstacles in securing prompt delivery of benefits.
This legislation has seriously and severely reduced the benefits received by injured workers. Since attorneys receive a percentage (customarily 12%) of the benefit received by the disabled worker, a reduction in benefits has reduced the numbers of attorneys who can financially represent the worker. Therefore, many workers, much like individuals in family law disputes, must and do represent themselves.
In the long run, injured workers find it difficult to obtain benefits and retain competent legal counsel to assist them in securing benefits.
The above legislative changes, politely called reforms, were designed to reduce the costs to businesses in California in order to ameliorate a faltering economy. Workers were thrown out with the bath water under the mantra of economic recovery.
In addition, disabled workers are misunderstood by businesses as well as the general public. Franz Kafka ruminated over the workers’ compensation system in 1915 when he was a member of the Austro-Hungarian Empire workers’ accident insurance institute. The following appears in Stanley Corngold’s 1972 English translation of The Metamorphosis, the first published in German in 1915 when Kafka was 32:
“What if I were to say he was sick? … The boss would be sure to come with a health insurance doctor, blame his parents for their lazy son, and cut off all excuses by quoting the health insurance doctor for whom the work consisted of people who were completely healthy but afraid to work.”
The above is often the misconception of both businesses and the general public – most injured workers are frauds. Not true. My experience, in over 40 years of workers’ compensation representation, is the overwhelming majority of workers suffer serious economic, emotional and physical disability. It is true that some workers have taken advantage. But, these are very limited and isolated cases.
However, recent court cases initiated by injured workers’ attorneys have provided some relief to injured workers. Ogilvie v. WCAB (2011) 197 Cal.App. 4th 1262, authorized workers to obtain rebuttal vocational expert testimony to support their claim of loss and diminishing earning capacity. In addition, strict application of the AMA (American Medical Association) Guides is no longer necessary. Guzman v. WCAB (2010) 187 Cal.App. 4th 808.
Although injured workers continue to experience their “miseries”, many dedicated advocates, although limited in number, continue to advocate for the injured worker before the legislature, executive and judiciary through an organization known as California Applicants’ Attorneys Association: CAAA. But, workers continue to face significant obstacles in securing competent legal counsel.
It is time for society and concerned citizens to take a serious look at the miseries of injured workers and stop cultivating the business interests at the expense of injured workers. Despite many protests to the contrary from business interests, employers continue to receive the greater benefit from the “workers’ compensation bargain”, relief from tort recovery for unlimited damages.
- William Herreras is a Grover Beach attorney and a certified specialist in Workers’ Compensation law. He has argued numerous cases before the California Supreme Court and Courts of Appeal. He can be reached at