One Step Forward, Two Steps Back: the Catastrophic Effects of Sb 899 and Sb 863 on Catastrophic Injuries
| Publication year | 2018 |
| Author | JOAN M. SUCCA, WCJ (RET.) |
JOAN M. SUCCA, WCJ (RET.)
Disclaimer: The views presented in this article are strictly those of the author and do not represent the views, opinions, or policies of DIR or DWC.
As a former defense attorney, I can attest that it was a well-known practice decades ago that workers' compensation insurance companies often withheld benefits to injured workers, hoping to eventually obtain a closed file for as little money as possible. The carriers found that delaying or denying benefits long enough, or doing so repeatedly, would induce frustrated injured workers to settle their workers' compensation cases for a fraction of their actual value. Many believe this type of conduct contributed to the enactment of the 1989 Margolin-Bill Greene Workers' Compensation Reform Act. The purpose of this act, in part, was to establish strict guidelines for timely payments of indemnity benefits, thus preventing defendants from unreasonably delaying or denying such payments.
Then, in 2004, employer-oriented interests convinced the Legislature and the governor that the pendulum had swung too far and that costs were soaring out of control. This resulted in the passage that year of SB 899, followed in 2013 by SB 863. In a remarkable sequence of taking one step forward, toward improvement in the delivery of benefits to injured workers, the State took two steps back, especially so in terms of the human toll. As a result of these bills, those changes, in addition to the amended apportionment laws (Labor Code sections 4663 and 4664), can add catastrophic insult to a catastrophic industrial injury.
As a retired Workers' Compensation Judge in San Francisco and Oakland, I have seen a number of injured workers with catastrophic injuries who suffered greatly due to UR and IMR and/or the new apportionment laws. As a result, the already dramatically diminished lives of those severely injured became even more miserable. The aim of this article is to highlight the human and moral consequences of these reforms by using as examples four cases I handled while I was a judge.
This example was among the first post-SB 899 cases I handled as a trial judge. When injured in 2002 at age 36, the employee was working as a warehouseman for a tire company. While on a ladder, stacking tires, he fell 16 feet and slammed his head on the concrete floor. The result was a significant brain injury. At the time of the injury he had worked for the employer for 16 years without incident. The industrial brain injury rendered him non-feasible for vocational rehabilitation and therefore permanently totally disabled. The matter proceeded to trial after the enactment of SB 899.
The injured worker had, at the age of nine, suffered a nonindustrial head injury. That injury resulted in a seizure disorder that medications fully controlled. It did not limit his ability to obtain a high school diploma, attend community college, and obtain unrestricted gainful employment.
I found that...
To continue reading
Request your trial