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SACRAMENTO — Leaders of the California Applicants’ Attorneys Association say they won’t give up on changing new permanent disability standards, despite the fact that the woman who formulated them — Andrea Hoch, the administrative director of the Division of Workers’ Compensation — was permanently confirmed by the California Senate on Thursday. Instead, the attorneys group says it plans to work behind the scenes through Senate President Don Perata, D-Oakland, to change the permanent disability formula. And they say they may soon try to block the new standards in court on the grounds that they were incorrectly created in the first place. “As Perata said, and everyone else said, it was not the intent of the Legislature to harm injured workers,” said David Rockwell, president-elect of the California Applicants’ Attorneys Association. Perata and other Democratic legislators now claim they were duped into signing SB 899, the huge workers’ comp reform legislation that passed the Legislature in April 2004 with just six lawmakers in opposition. Legislators including former Sen. President John Burton have said they believed Gov. Arnold Schwarzenegger when he said workers would not lose benefits. “My vote was predicated on the fact that permanently disabled workers would not be harmed, and that cost savings would come from better accountability in the system,” said Sen. Debra Bowen of Marina Del Rey, one of two Democrats on the Senate Rules Committee who last week voted against recommending Hoch’s appointment to the full Senate. Hoch, former chief assistant of the state attorney general’s Civil Law Division, was appointed temporarily by Gov. Arnold Schwarzenegger in spring 2004 to head the workers’ comp division. Almost immediately, she ran afoul of labor groups and workers’ comp attorneys for creating new standards for permanent disability payments that opponents say failed to use the standards mandated by the new reform law. Opponents also contend the new standards cut permanent disability payouts by as much as 70 percent. Applicant attorneys and labor groups had hoped to block Hoch’s permanent appointment when it came before the Senate for approval last week. Despite a massive lobbying effort, they failed when Perata, chairman of the Senate Rules Committee charged with vetting her, sided with two Republicans and agreed to recommend Hoch’s appointment. In voting for Hoch, Perata hinted that he and Assembly Speaker Fabian Nunez would work with Schwarzenegger “to ensure that the workers’ comp compromise we agreed to last year is implemented.” He added “we have other avenues of redress, including legislation and the budget, if necessary.” Applicant attorneys say they believe Perata may have a private deal with the governor — and they say they hope it works. “I think Hoch’s confirmation was important to the governor,” said J. David Schwartz, current president of the applicant association. “Workers’ comp was his first big victory, and to have her rejected would be an indication that it really wasn’t a victory. I think Perata may have felt that if Hoch was rejected, it might have closed the door to changes in the permanent disability schedule.” Alicia Dlugosh, Perata’s press secretary, confirmed that Schwarzenegger has agreed to meet with Perata and Nunez to “fix the major problems” with workers’ compensation — “specifically permanent disability.” New legislation could also be introduced to tweak SB 899, sources say. Closed-door negotiations aside, Schwartz and Rockwell said workers’ comp attorneys are also planning an appellate court challenge of the permanent disability schedule on the grounds that Hoch did not base the schedule on data provided by the RAND corporation — which SB 899 mandated. Hoch testified at her April 27 confirmation hearing before the Senate Rules Committee that she thought she had leeway in developing a new permanent disability formula. An attempt to block implementation of the new permanent disability schedule on those same grounds was tossed out of Sacramento Superior Court in April by Judge Raymond Cadei on the grounds that the Superior Court has no jurisdiction in the case, and that the matter belongs in state appeal court. Schwartz said the applicants group may soon file a writ to place the issue before the Third District Court of Appeal. In November, the Third District dismissed an earlier writ filed by applicant attorneys over portions of workers’ comp reform that require injured workers already in the system to switch doctors. The court threw the writ out in the grounds that the law had not yet gone into effect, and thus, had not yet caused workers harm.

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