Separate Powers

One of the most interesting debates going on in the country about workers' compensation is the constitutionality of changes to state systems that delegate certain acts and authority in non-traditional ways.

A major tenet of Constitutional Law is the doctrine of Separation of Powers. In short, the founders of this country had the foresight to set up a tripartite government: executive, legislative and judicial branches which are not to intrude into the functions of the other.

This system of checks and balances was designed to prevent monopoly powers in any single governmental branch. If the legislature (or the executive for that matter) does something that The People feel is wrong, then the judicial branch is supposed to be able to review it.

How far that doctrine goes in the real world is subject to all sorts of different review standards and competing interests.

Who's got The Power?

In the work comp world, a prime example is pending before the California Supreme Court in the Stevens v. WCAB (Outspoken Enterprises) case.

Last year the California 1st District Court of Appeals upheld the constitutional validity of the independent medical review process, basically saying that the state constitution gives the Legislature the power to do whatever it wants with workers' compensation, including defining its own constitutional powers and limitations.

In other words, because the state constitution gives the California Legislature plenary, or supreme, power on the topic of workers' compensation, that power exceeds any limitation the constitution may otherwise impose.

At least with regard to workers' compensation, the 1st DCA infers, the Legislature is not bound by the California Constitution.

Stevens is arguing to the Supreme Court that the Legislature is not so free to do as it wants with workers' compensation when it comes to violating the Separation of Powers doctrine, because by making Independent Medical Review a one-way process the judicial branch is usurped.

The flip side to that argument, and why this is such an interesting constitutional issue, is that there still is some judicial review, albeit limited, and that limited review is arguably balanced by the speed, efficiency and cost (financial and social) savings of IMR.

The justices in the 1917 US Supreme Court case of NY Railroad, which declared compulsory workers' compensation constitutional, said a review of workers' compensation statutes had to be done in totality - no single facet could be declared constitutionally erroneous without balancing against competing interests.

This is the sort of thing that drives engineers crazy - because the litmus test is vague. There's no clear yes or no answer. We can argue the merits all day long, and with good solid analysis for either proposition, but at the end of the day whether seven very intelligent, highly educated, people in robes agree is a gamble.

This is not a game, and certainly not made for TV entertainment - and the risk to a $30 billion system, and to the people it's to serve, puts the stakes high.

Which may be why this is so fascinating - the Stevens case has all the elements of high drama, and there's only three things the court can do: affirm, deny, or punt.

Just how much power does the California Legislature have? I reckon we'll find out soon enough.