In a stinging challenge to the California Division of Workers' Compensation, the Democratic legislative leadership has demanded answers as to the DWC's intentions regarding revision of the permanent disability rating schedule.

This story was revealed in a flash report late yesterday by the Workers' Comp Executive, one of the leading publications in the workers comp press. Here is a link to the article, which includes an unsigned copy of the letter to DWC acting administrator Carrie Nevans:
http://www.wcexec.com/Legislature-Deman ... -PDRS.aspx

The letter, (which I assume has actually been sent, though it appears in draft form on the WCExec site), apparently from Senate Pro Tem Darrell Steinberg, Assembly Speaker Karen Bass, Senator Mark DeSaulnier (Chair of the Senate Committee on Labor and Industrial Relations) and Assemblyman Jose Solorio (Chair of the Assembly Insurance Committee), notes that the Labor Code Section 4660(c) mandated a revision of the PDRS and that failure to meet the deadline "is a flagrant violation of the law and legislative intent", which require updating of the schedule every 5 years.

The letter notes that "...we were quite surprised to learn from media reports in late December that the Division did not intend to update the Permanent Disability Ratings Schedule due to a belief that the legislature may amend the statutory language underpinning the schedule. While the Legislature is empowered to change the statute, and reserves the right to do so, such specious speculation is not a replacement or stand in for statutorily required action."

The reference to media reports apparently refers to quotes attributed to DWC spokesperson Susan Gard. Gard had indicated that the DWC had no plans to meet the Janulary 1, 2010 deadline to revise the PD schedule.

The letter demands the following:
-a response "explaining how the Division intends to return to compliance with their statutory requirements"
-a detailed timeline explaining plans to implement a revised PDRS
-"the regulatory and, if necessary, statutory actions the Division intends to pursue to make whole the permanently disabled workers who
were adversely affected" by the delay in developing a new schedule

I'll be covering the response by Gard or her superiors, Carrie Nevans and John Duncan.

Stay tuned.

Julius Young
www.boxerlaw.com

A few years ago I sat for dinner at a big birthday party with a group of friends. In the room there were a couple of psychologists.....an estate planning lawyer.....a doctor.... a real estate guy....a business consultant...

Looking around the room, everyone had some sort of challenge.

Some were between relationships, having to choose whether to plunge back into the wonderful world of dating or whether to retire from the dating scene.

Some were over-employed workaholics. Others were between jobs. And others were underemployed, in jobs that no longer interested them.

Some seemed to have life's necessities nailed down, but still sought more connection and meaning. Some were spoiled brats who had it all. Others were just struggling to keep their head above water.

For some, it was hard to know what to work on first. When you have a demanding job and demanding family or relationship issues, something has to give. Others needed to get in the gym more to lose weight to feel better to have a better self image to feel more confident to have a relationship to have a family life. Round and round in the circle game.

A few of us started talking. Many of us could use a life-tune up.

Our cars went for tune-ups. Our pets went for grooming. The cable TV guy came to tune up our service.

We saw doctors. Accountants. Dating service consultants. Estate planners. Some of us hired personal organizers. Others had ministers or rabbis or gurus. Some had personal trainers. Some had headhunter advisers.

Could there be a market for one-stop life tuneup?, some of us mused.

A place where you could go to get a handle on how all the multiple life strands combine to overwhelm us.

In our fantasy we vowed to create a retreat. We'd have a gym, a personal trainer, a dating relationship consultant, a psychologist, vocational advisers, financial planners, and a list of other arcane disciplines. We'd work to get to the bottom of what ails the soul. We'd work to extinguish the modern angst.

It never came to pass, of course. Perhaps somewhere such programs exist for members of the jet set.

But our efforts are usually more disjointed. Most of us lack the comprehensive approach to life or the vision or money to seek it.

But there has been a recent trend toward personal coaches or life coaches:
http://en.wikipedia.org/wiki/Coaching#Personal_coaching

In the workers' comp world, could this be helpful to some disabled workers? With vocational rehab a thing of the past, could some workers use life coaching if it helped give them perspective and tools to set goals?

As an attorney with decades in the field, I'd say yes. As with any professional service, the quality of the service is key. But many injured workers are buffeted by so many problems that they don't know where to start. And the caregivers working with these workers are often focused on "procedures" rather than results. After years of "procedures" many are still in pain, broke, and angry.

The injury affects their income. Their sex life. Their sleep. Their family life. Their motivation. Their morale. The list goes on and on. Many of these folks could use a quality personal coach to help them identify priorities and strategies for getting back on track. A coach who would not provide answers, but who would provide perspective and guidance.

A bit of a life tune up might go a long way.

Julius Young
www.boxerlaw.com

Meg Whitman's gubernatorial campaign appears to have jumped the shark.

Whitman campaign advisor Mike Murphy has sent an e-mail to California Insurance Commissioner Steve Poizner (Whitman's rival for the Republican gubernatorial nomination), threatening Poizner if he does not reconsider his gubernatorial run.

It follows a threat to put Poizner "through the wood chopper".

That's a thinly veiled reference to the movie Fargo, where actor Steve Buscemi was thrown into a wood chopper.

Murphy's e-mail is telling in its display of arrogance. Murphy says ..."we can spend $40M tearing up Steve if we must..." It's just one more example of the emerging Whitman strategy: buy the governorship, no matter what it costs.

I'm not a Poizner supporter, but I must admit that he has shown a great deal of backbone in resisting pressure from California comp insurers to raise rates. Today he showed backbone in defying the Whitman campaign's threats.

Whitman appears to be ready to spend whatever it takes to achieve her goal: to buy the California statehouse.

But Poizner, using jiujitsu tactics, won this round. Whitman's campaign is on the mat on this one.

A central narrative of Whitman's campaign is competence and managerial talent. But if you have trouble managing the consultants and political advisers who staff your campaign, it sends a poor message.

Poizner wrote to AG Jerry Brown (that's a strange twist), the FBI, and various U.S. Attorneys, asking for an investigation on the following grounds:
-California Election Code Sec. 18205 (prohibits inducing by way of money or other valuable consideration) a person to withdraw as, or not become, a candidate for public office
-18. U.S.C. Sec 875(d) (Federal anti extortion statute)
-18 U.S.C. Sec. 1952 (another Federal anti-extortion statute)
-18 U.S.C. 1343 (Federal law prohibiting fraud to deprive people of rights)

Little may come of Poizner's call for an investigation. But Whitman's campaign stepped in some public relations manure on this one.

This race will be interesting.

I'll be commenting from time to time on the Governor's race. The outcome of that election will probably have profound consequences for the California workers' comp system.

Stay tuned.

Julius Young
www.boxerlaw.com

This week a report from the Legislative Analyst Office (LAO) questions salary reductions of state personnel who are funded through targeted and user-funded mechanisms:
http://www.lao.ca.gov/reports/2010/stad ... 012710.pdf

The Workers' Comp Appeals Board is "user funded" by assessments on employers. Those assessments also fund Cal-OSHA and labor standards enforcement activities.

But WCAB staff have been subject to furloughs. The Governor plans salary cuts from which the WCAB staff would not be exempted. This is causing great consternation among WCAB staff and staff at other user funded agencies.

The LAO report by Legislative Analyst Mac Taylor notes that:
"It is unclear, however, why the administration chooses to implement the 5 percent unallocated cuts to parts of personnel budgets not funded by the General Fund. The administration's rationale communicated to our office-that the overall size of state government is too large-is arbitrary and not based on any reviews of specific program workloads or personnel effectiveness."

The LAO recommends to the legislature:
"The administration has not put forth a credible rationale why unallocated reductions should be extended to personnel expenses funded by special funds, federal funds, or other nongovernmental funds.
If the Legislature chooses to implement unallocated personnel reductions, we believe that it should do so only for General Fund personnel budgets in departments."

Will the administration back off its plan? Or will they trot out another lame spokesperson to defend this policy?

We shall see.

Julius Young
www.boxerlaw.com

A "collapsed souffle in an unused kitchen in the back of an empty house"....

That sounds like a line from a writing of French surrealist Antonin Artaud, who wrote that "life is a costume grafted to a dead tree".

But the souffle line is from Peggy Noonan. Noonan, former Ronald Reagan speechwriter, and current Republican pundit, uses the line in an op-ed piece in the Wall Street Journal to claim that healthcare reform is dead.
Noonan posits that, despite Obama's insistence that Congress not give up now....now when we are so close..., that "The bill will now get lost in the mists and disappear".

If Congressional Democrats were looking for a road map on healthcare reform, the State of the Union address offered few clues. We're almost into February without a clue as to how the White House proposes to rescue this sinking healthcare reform enterprise.

I've argued in the space recently for salvaging the effort with a scaled back bill to focus on politically popular elements such as eliminating preexisting conditions coverage refusals, allowing purchase of healthcare plans across state lines, eliminating other insurance carrier abuses such as recissions, creating incentives for doctors to practice primary care , and promoting clinics in underserved areas.

Healthcare economists will tell you that the trick is trying to keep costs down if preexisting condition coverage limits are banned. Will healthy people decide to avoid buying insurance coverage until they are sick? If millions of people game the system in that way then costs are shifted and premiums would rise .

There are ways to structure a ban on exclusions due to preexisting conditions, although they are not pretty and perhaps unworkable for many. To gain coverage individuals could be required to pay premiums retroactive to when they were diagnosed with the particular condition.But would this work? Such a solution would be unaffordable in all likelihood. A diabetic who either could not pay for coverage or chose not to pay for coverage could go for years without coverage before developing expensive complications. Do we allow insurers to then refuse coverage for this person (as happens now) or do we allow them to purchase coverage? And if we allow them to purchase coverage do we exclude coverage for the diabetes itself or only for its complications? Or do we provide full coverage for that person even though they did not pay into the system for years?

Perhaps we could force insurers to write coverage for people who have underlying chronic diseases provided that they purchase the insurance while the disease is relatively quiescent. Under that scenario a diabetic may have had episodes related to ketoacidosis, for example, but if the diabetes was under control then he would be guaranteed the right to buy insurance. Setting up bright lines as to when individuals could and could no longer purchase insurance would be tricky.

But tricky is not an excuse to do nothing. Why should a 20 year old diabetic be doomed to a lifetime of no insurance coverage? And do the anti-tax tea party folks want to pay (through their taxes) for that diabetic's treatment in county-run emergency rooms? Or would they just refuse him ER treatment there?

Dealing with such difficult issues is the reason we have such lengthy, perhaps convoluted, Senate and House healthcare bills. The goal was to force most people to have insurance and create mechanisms to help people who couldn't otherwise afford it.

But the majority of voters are unhappy about such an expanded scheme.

Hopefully the Congressional leadership has some creative health economists who can put together a credible but scaled back plan.

I agree. This souffle is collapsing.

Julius Young
www.boxerlaw.com