Some Governors have taken an active role in pushing workers' comp reforms in their states, e.g., Governor Schwarzenegger in California (2004), Governor Spitzer in New York (2007). Last month South Carolina's Governor Mark Sanford used his executive powers to order the state Workers' Compensation Commission to use the American Medical Association's Guides to the Evaluation of Permanent Impairment or any other accepted medical treatise or authority in deciding compensation.

Sanford issued the order just three months after the state legislature passed reform legislation. The legislature had heatedly debated the use of the AMA Guides, but ended up removing the provision related to it order to pass the reforms. (See my blog The New Edition of the AMA Guides: Six Times a Charm? at http://law.lexisnexis.com/blogs/Insurance/The-New-Edition-of-the-AMA-Guides-Six-Times-a-Charm)

Is Governor Sanford's executive order illegal? Did he effectively rewrite the reform legislation and thereby cross into the legislative arena? Are the Workers' Compensation Commissioners being forced to violate a state law because basing disability awards on a strict application of the AMA Guides may set awards below the requirements of the state Workers' Compensation Act? Will the issue have to be ultimately resolved by the South Carolina Supreme Court?

One can't help but be reminded of what happened in Hawaii in 2004 when Governor Linda Lingle, who was repeatedly thwarted by the state legislature in getting any workers' comp reforms passed, decided to take the matters into her own hands by passing reforms using her rulemaking authority with the aid of the Labor and Industrial Relations Department. The state legislature immediately struck back in 2005 with a "handcuff bill" by removing for two years the authority of the Labor and Industrial Relations Department to adopt regulations that changed the workers' comp system.

We don't know at this point what action the South Carolina legislature or courts will take with regard to Governor Sanford's executive order. Stay tuned.