How The Law Works

I hear complaints all the time about how lawyers take something "simple" to create major case law exceptions that erode the "original intent" of the law - like lawyers somehow have some magical wizard powers to alter "the law."

Usually, when you peel back the onion skins on the anecdotes purporting to prove this point, we find that the language that the lawyers allegedly take advantage of is: a) menacingly under or ill defined; b) failed to take into account a specific fact pattern; c) is so egregious that it works a huge unfair penalty against certain persons (see "b"); or d) the legislature during the negotiations phase gave up and decided to let the courts figure it out, which means the lawyers likewise have to figure it out.

This happens all of the time with new legislation, which is why when there are broad-stroke changes to statutorily derived rights, benefits and liabilities (e.g. workers' compensation) it may take years before such a system stabilizes into some form of predictability.

California's SB 863 is such a perfect example of this maxim that it can not be ignored.

In 1989 the California legislature, in reaction to the trend at that time of making psychiatric/mental injury a part of every claim, passed into law Labor Code section 3208.3, which set certain thresholds for the compensability of such claims.

At first there was a spat of challenges to the law and it seemed that new case law on that statute was coming out nearly every other month, until eventually the new borders established by that code section were nicely defined by the courts.

That process took about seven years, or so it seems.

And that is, in general, about how long it takes for fresh legal language out of the legislature to make its way through the appellate refinement process.

But that doesn't keep legislatures from throwing some new challenges to the courts, and in the case of SB 863 there is plenty of judicial distillation to occur.

One of the zingers that the legislature was warned about early in the process of writing SB 863 was the exception for "catastrophic injuries" to LC 4660.1 regarding permanent disability.

The legislature reacted to the trend of incorporating "off schedule" issues to a permanent disability rating (sleep disorder, sexual dysfunction, etc. - stuff that nobody can really prove...) by adding new language that attempts to put a restriction on these add ons.

But an exception to the exception is that if there is a "catastrophic injury" then such add ons may be applicable.

This is creating a bit of debate in the legal circles.

Some are thinking that this language may supersede portions of LC 3208.3, others say that the sections are different and that there is no inter-relationship.

Still others believe that there might be some relationship in concepts but that operational effects are going to be different.

Each argument is going to be based not only on the perceptions of the position asserting the point, but also on the desired outcome for any particular set of facts (i.e. a case).

In law school, particularly in the early years, prospective lawyers are thrown all sorts of legal concepts and law, and then there were exceptions that had to be considered and distinguished, and after that there were always exceptions to the exceptions.

I dealt with this attempt to create legal psychosis by recognizing that in the vast majority of such examples the exceptions to the exception was simply going back to the underlying, fundamental basic law - if I analyzed what the base law said carefully then there was no need to memorize the exceptions to the exception; it was simply a restatement of the original legal concept in response to a particular factual pattern.

And so it is with "catastrophic injury", LC 4660.1 and 3208.3.

Adam Dombchik, a past president of CAAA and a partner with Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, was quoted in a WorkCompCentral story this morning about this issue, and his analysis aligns with my legal rationale.

Dombchik said that what a case will boil down to is simply an inquiry into whether a worker has a "legitimate, verifiable, substantially-supported claim" for a psyche injury, because "valid claims should have benefits paid," no matter what definition eventually gets assigned to "catastrophic."

Yes, the legislature failed to give specific definition to "catastrophic injury" and, yes, this will create litigation. Litigation ultimately will create case law and over the course of the next seven years this term will be more well defined.

That's how the law is made. Will The People be patient enough for the law to work?