Friday, March 1, 2013

The Future Must Wait for The Experience

There were two comments yesterday at the Los Angeles venue of the California Division of Workers' Compensation 20th Annual Educational Conference that pointed out, to me, that most people forget that "The Law" is of triangular construction, and for very good reason.

The first comment was made by Department of Industrial Relations Chief Counsel Katherine Zalewski who noted that the negotiators of SB 863 struggled with the definition of "catastrophic injury" but every time they came up with something they thought could work someone else would come up with a fact scenario that would defeat the definition.

Ultimately the bill authors decided that they would not statutorily define "catastrophic injury" and it would be up to the courts to decide what that term meant.

The other comment was made by an attendee who said that, while they thought the conference was very good, they were hoping to get more specific tutelage - they were looking for more detail on how SB 863 and its implementing regulations are supposed to work.

Practitioners in the workers' compensation system want all the answers in order to do their jobs as well as can be done - we are very used to having specific guidance on nearly every little detail that governs the claims process.

But we can't always know how to handle everything all of the time because fact patterns are different from one case to the next.

And not just the facts of injury, AOE/COE, body parts, disability, treatment, etc., but the personality, the sophistication, the lives of the players all contribute to the decision making process that ultimately results in the life-path of a claim.

This is the purview of the courts.

The reason there are several levels of judicial review, with written opinions on how the law has been interpreted and applied to a particular fact pattern, is to establish the law that manages similar fact patterns.

This is a tradition that was handed down centuries ago from the roots of British law to the American colonies - the concept of "case law."

The third leg of "The Law."

Just as the future can not be predicted, neither can the application of a statute or regulation take into account the myriad of options that human behavior can conjure. It is impossible to predict how any individual person's situation may fit within the confines of a statute or regulation.

We're not that intelligent ... yet.

We all crave certainty. We want to know that if we do something one way, the result will be predictable. Especially someone like me who is highly regimented and obsessive - I particularly like to know that when I press a certain button I know what will happen.

But the law doesn't work that way. The law, at times, is intentionally vague like the definition of "catastrophic injury."

Because the variables are too great, and the imagination of a few cannot compete with the reality of the many.

Which is why, in part, much of the economic and financial impact of SB 863 could not be reasonably predicted and why different agencies have come up with such wildly disparate estimations of the bill's impact.

There are two characteristics that makes case law uncomfortable for most: unpredictability as to outcome and time.

Not knowing how an independent arbiter views the application of the law to any particular fact pattern is disconcerting to many. Lawyers are used to it because that's their profession - a lawyer's job is to deal with such ambiguity and try to convince the arbiter that their view is applicable. But this is not how most operate. Most of us want an answer and want it now so we can move on.

But eventually we do get an answer, and that answer guides others in the management of any other similar fact pattern - but this takes time. Often lots of time, as in years.

Time is the bane to case management because time literally means money in terms of indemnity, medical costs, management expenses.

So we make a cost-benefit analysis and sometimes we throw the dice and ask the courts to interpret for us and other times we don't take the risk of combination of unpredictability and time and resolve the matter.

SB 863 is massive, complex and thoroughly displaces many known elements of California workers' compensation law. Legal change as completely disruptive as SB 863 will take years before we know the answers, and likely there will continue to be many unanswered questions regardless of what the courts tell us.

"The Law" is a tripartite animal: statutes, regulations and case law. It isn't perfect but it's as good as society has come up with.

We all would like to know more about the future, but often we can only wait to experience it.

No comments:

Post a Comment