Larry Stirling is a former State Senator and Retired
Superior Court Judge
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
If either party disputes
the arbitrator’s decision, they
can appeal the decision de novo to the Superior Court with no
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
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
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
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.
people will get benefits consistent with their loss and fraudulent
and de minimis claimants will be dismissed. CRO
2004 Larry Stirling