It was inevitable. It was only a matter of time before a workers' compensation judge took a look at the new permanent disability rating schedule and said, "I don't think so." Well, it actually happened.

Lost in all the hype of benefit inadequacy and incessant efforts of the Commission on Health and Safety and Workers' Compensation to take control of the workers' compensation system was a St. Patrick's Day gift to the California Applicants' Attorneys Association in the form of decision by a workers' compensation judge in Navarro v. Arbor View Retirement Community.

In Navarro, the injured worker received no impairment rating under the AMA Guides. It is a case that has been generically called a "zero" to distinguish cases with no permanent disability under SB 899 that would have received a PD award in the past. "Zeros" figure prominently in the estimation of cost savings from SB 899 and in the claim that higher benefits are owed injured workers who do have an impairment under the new rules. But the workers' compensation judge in this case was not interested in statistics.

Instead, after reviewing the case, the judge decided that the criteria in the new rules "...must be applied and measured on a case by case basis." In this particular case, the judge determined that the applicant had proved sufficient inability to compete in an open labor market that the prima facie case of no disability by application of the schedule was rebutted.

The worker received a 15 percent permanent disability rating with no impairment through application of the AMA Guides.

Although inevitable, this well-publicized decision has nevertheless created quite a stir in workers' compensation circles. The big winners are applicants' attorneys, at least at this point, who can circulate the opinion and its rationale to their members and start making zeros profitable for themselves again.

The other big winner, unfortunately, is the Commission on Health and Safety and Workers' Compensation, which will more loudly sound the alarm that their schedule should be adopted and considered conclusive proof of the nature and extent of disability. Neither of these results should be considered comforting.

The Navarro case points to a number of flaws still plaguing the California workers' compensation system. First and foremost is lack of real oversight and inconsistent decision-making by workers' compensation judges.

If State Compensation Insurance Fund decides not to ask for reconsideration of this opinion, it will have no official precedential effect, and simply will be one case in the thousands that quietly go away through settlement or award even though its underlying legal rationale is profoundly suspect.

Although remedies certainly exist for challenging questionable legal decisions case by case, no adequate mechanism exists to hold judges to account who regularly and repeatedly issue decisions clearly contrary to the law. Were this the case of a Superior Court judge, a complaint before the Commission on Judicial Performance could be filed. But that body has no jurisdiction over workers' compensation judges.

The second problem this case exposes is the Appeals Board's failure to bring clarity to the system through its authority to regulate and prescribe the nature and extent of proofs and evidence. Were the Board to assume such a role, much of the debate over what proofs are allowable to show disability in the new system could be alleviated. It certainly would be helpful in medical evidence, where providers and payers alike still fly blind.

Meanwhile, try as the Division of Workers' Compensation might, real-world dynamics of this system play out ad hoc before workers' compensation judges across the state. In one jurisdiction, a judge decided that providing immediate medical treatment was retroactive. In others, ACOEM guidelines are overturned even in cases where ACOEM sets forth what is supposed to be the presumptively correct method of providing treatment. And you still have Navarro, waiting to play out, one hopes, before a higher tribunal.

These trends likely are lost on advocates who continue to claim the world came to a crashing end on April 19, 2004 when SB 899 was signed into law. Not burdened by facts, their arguments still resonate with equally uninformed legislators, some of whom even decry the results of legislation they themselves authored.

If there is one message that Navarro should bring home to the business community, it is that regardless of the level of impairment, no injured worker should be labeled a "zero." It is a trap the feckless Commission has allowed everyone to fall into—everyone, that is, except one workers' compensation judge who, for the moment, has turned the system on its ear.