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June 25, 2014
Viewpoints: Legislature is letting down California's injured workers

MC_SKI_WEEKEND.03.JPG(June 25 - By George Davis and Sid Freeman, Special to The Bee)

The scandal over wait times facing veterans at taxpayer-supported hospitals has triggered federal investigations and a Cabinet resignation. But the failure of our state to ensure critical care for thousands of injured workers, or to rein in deadly neglect by gatekeepers paid to oversee injury cases, is off the agenda in Sacramento. That needs to change; lives may depend on it.

Dubious credit for the lack of attention to injured workers on the legislative calendar goes to the California Chamber of Commerce. It put on its "job killer" list this year a measure to allow higher penalties for insurers and claims administrators whose action, or inaction, contributes to the suffering or death of people in the workers compensation system. The chamber dispatched a team of lobbyists to the Capitol to kill the bill, and prevailed.

The chamber's onslaught showed a lot of gall but no shame. It distorted a bill, Assembly Bill 2604, designed to honor and protect the lives of workers hurt on the job, into its opposite. Legislators should not stoop to that level by allowing this bill to curb mistreatment of more than 400,000 injured workers a year to languish without due consideration.

This is not a rhetorical exercise for us. We both have deep, firsthand experience with the workers' compensation system. We come from labor and business, and have both counseled colleagues facing the gamut of paperwork, delays and, all too often, investigation of workers who file an injury report on the job.

The case of Charles Romano is an example of what is wrong. In 2003, Romano injured his shoulder and spine while stocking shelves at a supermarket in Oxnard. After surgery he suffered a serious staph infection that left him paralyzed from the chest down. Claims adjusters hired by his former employer's insurance carrier put him in a nursing home. However, Romano waited and waited for a device to ensure he kept breathing at night and a mattress and wheelchair that could reduce his pain. Family and friends routinely had to intervene to demand life-sustaining treatment and transport while paying for critical aspects of his care.

In May 2008, after an ordeal that judges blamed on "blithe disregard" by the claims administrator, Romano died. His last words were, "They win." In April 2013, in the final ruling on Romano's case, state judges found 11 separate instances of "unreasonably delayed medical care." They assessed the maximum possible fines against the claims administrator, Sedgwick.

But because state law since 2004 has capped each of those fines at $10,000 or 25 percent of the cost of the withheld treatment, whichever is less, the total fine for "the catastrophic consequences" of "delays, inaction, and outright neglect" found in Romano's case might only be several thousand dollars. For a multimillion-dollar corporation, that is not even a pittance. For the death of a California worker, that is an insult.

The bill the chamber's lobbyists worked so hard to quash this year set out to change one phrase in state law: To make the maximum allowable penalty 25 percent of the cost of the withheld treatment or $10,000, whichever is more. Judging by the chamber's outcry, one might have thought a shareholder raid on corporate bank accounts was afoot. The modest bill did not even get a hearing.

But it is lawmakers' job, assigned by the state constitution. It guarantees all Californians a "complete system of workers' compensation" to "cure and relieve" workers from the effects of injuries. And it delegates to the Legislature the power to "create and enforce liability" for workers' injury, disability or death.

Steeper penalties are a tiny step in shifting the cost burden of caring for injured workers back to insurers from ordinary Californians, whose premium payments as workers and employers are contributing to huge industry profits. Discouraging callous mistreatment of workers by insurers and claims administrators is the least that lawmakers can do in discharging their oversight duty. It will not bring Charles Romano back to life. But it could prevent the loss of others.

George Davis served as an elected officer in Bay Area locals of the oil and chemical workers union, PACE, and the office workers union, OPEIU. Sid Freeman, a small businessman from suburban Los Angeles, is the 2014 Dolores Huerta Award recipient from Voters Injured at Work, a statewide advocacy group.