From Injury to Insult
Every Wednesday morning at 8:30 sharp, lawyers begin queuing outside the cramped Santa Monica office of Pamela Foust, a veteran judge with the California Division of Workers’ Compensation.
The lawyers, representing injured workers and the companies that employ them, idle beneath moldy ceiling tiles in the crowded outer room. To enter Foust’s chamber, they dodge waist-high stacks of case files piled along the walls of the court complex’s warren of rooms.
Helping themselves to penny candy in a dish that Foust keeps on a corner of her desk, the lawyers huddle with the judge for so-called mandatory settlement conferences, talks aimed at resolving workers’ injury cases without the time and expense of a court trial.
But these days, few of the attorneys are settling. Most, in fact, want nothing more than time -- asking for delays in cases that are already 3 to 4 years old.
“Not one person was ready for trial, and not one has settled,” an exasperated Foust complained during a midmorning lull in late February. “We churn and churn, and now we’re setting trials for June.”
Eleven months after the Legislature approved the biggest overhaul in the 92-year history of the state system for providing medical care and financial compensation to victims of on-the-job injuries, crucial details remain to be worked out. Many aspects of the sometimes ambiguous law won’t be clear until they are decided in court months or years from now. Lawmakers have introduced scores of bills that could alter the law even before it is fully implemented.
Because of the uncertainty, insurers have been slow to slash rates on workers’ comp policies, although a premium reduction recommended by a key ratings bureau last week gave hope that significant savings may not be far off -- achieving a prime goal of Gov. Arnold Schwarzenegger when he shepherded the overhaul through the Legislature in April.
Meanwhile, an estimated 100,000 workers’ comp cases have been stalled as doctors rewrite medical evaluations to meet the new, more stringent standards mandated by the law. And sparring over what now constitutes appropriate medical treatment and who should pay for it has forced injured workers to wait a year or more for their cases to be reviewed by independent medical specialists.
Nowhere is the confusion more evident than in the 24 workers’ comp courts, the destination for the one-third of workplace injury cases that are not resolved routinely among employers, workers and insurers.
It’s a high-volume, specialized legal system that can begin to bog down unless most of its cases are settled. But uncertainty about how the new world of workers’ comp will eventually evolve is making lawyers on both sides of injury cases resist settling -- or even deciding to go to trial.
“The lack of legal clarity has the potential of grinding the entire system to a halt,” said David Leonard, an attorney who helps doctors deal with the system.
There are signs the system is bogging down, especially in Los Angeles County and other busy venues.
Throughout the state, trial postponements rose 21% last year as lawyers balked at settling, and orders to take cases off the calendar -- in effect setting them back to square one -- rose by a similar percentage.
Meanwhile, with more workers’ comp claims going to trial, it now takes 93 days to get a case into court in Santa Monica, 55% longer than a year ago and almost twice as long as in 2003.
“The cases are going to trial and not being settled,” said Douglas Felchlin, a defense attorney who represents UCLA and several school districts in the Los Angeles area. The workers “are getting screwed and not getting benefits.”
Mario Reynoso, one of the workers waiting for a hearing in Santa Monica last month, would agree. The truck driver, who hurt his left knee while lifting boxes of produce in 2001, is going to court rather than accept the $26,000 settlement offer from his employer’s workers’ comp insurer.
“My doctor, who did two surgeries on me, told me I better close the case because the laws are going to change,” he said, shakily supporting his heavy frame on two wobbling canes in the crowded waiting room.
“They’re just throwing me a bone. I’m going to trial,” he said. “I’m 61 years old and got five more years to retirement. Who’s going to hire me without a driver’s license and with crippled legs?”
Tension lined the faces of many of the workers and attorneys milling about the shabby, low-rise office building on Ocean Park Boulevard that houses the workers’ comp court.
Some waited stoically for trials or conferences in regimented rows of straight-backed chairs. Lawyers wheeled carts full of case files around a first-floor courtyard and a second-floor balcony, dickering with one another in a scene resembling a legal swap meet.
In her first-floor office, Foust paused between two of the 34 conferences she had scheduled for the day and lamented that she had never seen such anxiety among her usually close-knit group of colleagues.
“Attorneys are terrified about their livelihoods,” she said, noting that stress levels around her court are mounting along with the uncertainty over the new law.
As if on cue, a lawyer rushed into her office a few minutes later, dressed in a bowling shirt instead of the usual business suit.
“Excuse my appearance, your honor,” he pleaded to the astonished judge. “I had to wear this because I’ve got hives and hypertension.”
Drama aside, the Schwarzenegger administration contends that a series of regulations now being implemented will alleviate the confusion in the workers’ comp system.
What’s more, the state is reversing the effect of years of budget cuts in the workers’ comp courts by hiring more judges and clerical staff to make backlogs “relatively short-lived phenomena,” said Kenneth Peterson, the acting chief judge at the Division of Workers’ Compensation.
Schwarzenegger spokesman Vince Sollitto said the governor was committed equally to cutting employers’ insurance premiums and delivering speedy medical care to “truly injured” workers.
Attorneys and labor unions, he said, are trying to stymie the governor’s efforts to fix the system by “causing uncertainty and seeking to undo the law.”
Finger-pointing by both sides is probably inevitable, given the sweeping nature of last year’s overhaul -- “probably the most significant in the workers’ comp system since 1917 in California,” said Merle Rabine, chairman of the Workers’ Compensation Appeals Board.
“There are a whole lot of things that are new,” he noted, “and it’s hard to say how they are going to work out.”
Until then, Judge Foust will continue to juggle her calendar -- and keep her candy dish filled.
“I’m spending twice as much on candy as I was before,” she joked.