Contributor

Larry Stirling
Larry Stirling is a former State Senator and Retired Superior Court Judge

Disintermediation!
The way to fix Workers Comp....
[Larry Stirling] 3/19/04

The basic truth about the California Workers Compensation fiasco is that employers pay more than any other employers in the nation and truly injured workers receive less than any other injured workers in the nation.

That makes the problem fairly clear, the middlemen. The solution is to disintermediate the middlemen.

Here is how:

The present dispute resolution process includes at least three lawyers, one on each side and a very liberal administrative law judge. Those three lawyers are NOT NEEDED.

Instead, when a dispute arises, the workers comp administrator should follow the format of the American Arbitration Association.

That simply involves sending the parties a list of seven interested and qualified lawyers. Each side strikes off one in turn and the remaining lawyer becomes the arbitrator. That lawyer meets with the parties, hears their positions and makes a decision. If prior or after the arbitrators hearing, the parties want to settle, they may and the settlement will be binding on the parties and the workers comp system as long as it is in accordance with law.

If either party disputes the arbitrator’s decision, they can appeal the decision de novo to the Superior Court with no jury.

The exact same process should be followed in the medical examination. A list of participating doctors can be provided. Each side strikes off names until one remains and that doctor does the one and only independent medical examination that is paid for by the system. Any one want additional medical examinations, they can pay for them themselves.

The AAA system promotes a corps of lawyers and doctors who will be motivated to establish their fairness and objectivity. The current system is “centrifugal.” It invites the creation of a corps of doctors and lawyers best known for their dogged pursuit of one side or the other. No one is well served by this system.

If the superior court decision is not satisfactory, the matter can be appealed on up the judicial system with its quality controls and fast –track rules, none of which are available to marginal ALJ corps.

The State could then eliminate the ALJ corps and the very biased Workers Compensation Appeals Board. The courts are under worked and they can handle this workload.

Also, the legislature should eliminate all presumptions adverse to the employer. They include presumptions about the treating physicians testimony, delays in filing, and assumptions about compensation.

The legislature should create an independent auditor as a constitutional office. All state audit staff should be transferred to the new constitutional officer and that auditor should investigate ALL cases of suspected workers comp, welfare, and medical fraud.

The above changes will bring reason and positive incentives to the program.

The changes will promote a corps of honest participants rather than one-sided advocates. And the AAA process will wring out about two thirds of the dispute resolution costs. Most cases will settle without a Superior court hearing.

Truly injured people will get benefits consistent with their loss and fraudulent and de minimis claimants will be dismissed. CRO

copyright 2004 Larry Stirling