The issue of pension reform in California is heating up.

In various municipalities, efforts are underway to change how public employee pensions are funded. For example, in San Francisco voters are being asked to decide between several plans.

Governor Brown has unveiled his plan, which is summarized in this piece in the Sacramento Bee, "Jerry Brown's Pension Plan Explained:
http://www.sacbee.com/2011/10/28/401302 ... ained.html

Pension reform could have consequences for California's workers' comp system. I've been told by several California workers' comp judges that they would likely retire if affected by pension reforms.

But the question with pension reform is not if but when and how.

That's why I noted an interesting piece by Joel Fox in his "Fox and Hounds" blog, titled "Pension Reform Strategy Echoes Workers Comp Reform of 2004":
http://www.foxandhoundsdaily.com/2011/1 ... m-of-2004/

Many of us have seen this movie before.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Outside my office, the Occupy Oakland tent city is back.

Efforts to forcibly evict protesters from Frank Ogawa Plaza created a public relations debacle for Oakland's mayor and police when a protesting Iraq vet was tear gassed and critically injured by some sort of projectile from police.

As I noted in a post last week, the Occupy Oakland movement is a mixed bag. There are protesters with serious ideas and serious grievances. And there are others with goofy ideas and flaky politics.

Many of the protesters seem unable or unwilling to understand that John Boehner's crowd controls the U.S. House. If the Congress was full of Rachel Maddows, Michael Moores and Keith Olbermanns, the story would be very different.

This week the protesters hope for a November 2 mass strike and plan a march on the Port of Oakland. A communique from the movement threatened corporations that do not shut down, noting that "we will march on you".

Here's an assessment of their efforts and the challenges the movement faces in a piece by Joe Garofoli in the San Francisco Chronicle, " Big Challenges for Occupy Movement":
http://www.sfgate.com/cgi-bin/article.c ... &tsp=1

As it was with the Tea Party's surge in 2010, whether these efforts will attract long-term mainstream support or whether they will fizzle is unclear.

But what about the underlying grievances?

Comparing various categories, how in the U.S. doing with social justice?

Not so well.

Here is a link to a study of how various countries stack up in overall poverty rates, child poverty, senior citizen poverty, primary education expenses, income equality, and healthcare. I invite you to look at the chart, which was noted by Charles Blow in a recent New York Times op-ed piece:
http://www.nytimes.com/imagepages/2011/ ... ef=opinion

If measured by whether they are proposing workable solutions, the Occupy movement is a failure. But to the extent that the Occupy movement is raising awareness of problems in our country, they are performing a service to our system.

It's hard to maintain belief in "American exceptionalism" if we are exceptionally bad in so many key categories.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

The California Supreme Court has now rebuffed the City and County of San Francisco's bid to overturn the Ogilvie case.

In a move widely anticipated, the Supreme Court refused to grant review.

With S.F. City Attorney Dennis Herrera's mayoral campaign stumbling and Herrera's complex litigation deputy attorney Danny Chou's efforts in Ogilvie being rebuffed, it was not a good day for the City Attorney's office in the city by the bay.

So unless and until another Court of Appeals panel renders a decision that conflicts with the decision of the California Court of Appeals First District, that court's Ogilvie decision is the law. The case heads back to the WCAB trial level, however, and it's quite possible that we will see the issue eventually go back up to the WCAB en banc and through the appellate process again.

That could take years.

Meanwhile, the City and County of S.F. may have done a favor to applicants by taking the issue to the California Supreme Court, giving the issue a patina of finality for the forseeable future.

These developments are a cause for celebration for applicant attorneys and a bitter pill for defendants.

Applicant attorneys hail the decision of the First District in Ogilvie which seems to open several broad doors to rebutting the PD rating schedule.
And that's in addition to language in the 6th District Court of Appeals Guzman decision which allows rebuttal of the strict American Medical Association Guidelines impairment rating in some instances.

We'll now enter a period where-in some cases- vocational experts formulate rebuttal arguments to the rating.

Exactly how this is permissibly done, and under what circumstances, will be the fight.

Is it the end percentage of the rating string which is being rebutted? Or the "FEC factor"?

Is it true that there is no meaningful difference between "inability to compete in the open labor market" and lack of an "earning capacity"?

Where does Labor Code 4662 language about "permanent total disability according to fact" fit into all of this?

And what methodologies used by vocational experts will pass muster?
How will similarly situated workers be identified, and what periods of wage loss will be compared?

The costs of these evaluations-who pays and when-will continue to be an issue. As will the costs to the system if litigation costs spiral out of control.

But one thing is sure. There are some injured workers out there who will receive awards that will be positively affected by the decision.

Again, the California courts have interpreted the law in a way to allow some flexibility rather than in a cookie cutter justice manner.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Between the BART stop and Oakland's Workers' Compensation Appeals Board now lies Occupy Oakland.

On one of the Bay Area's beautiful balmy Fall days, one could look at the colorful tent encampment and think it was a REI convention or a Boy Scout jamboree.

Passing by the encampment on the way to the WCAB, one sees broadcast trucks, lines of porta-potties, and lots of handmade signs.

It's quickly apparent that the Occupy Oakland encampment has a broad agenda. Workers' comp wasn't on the list.

A block away, outside the Oakland WCAB sat a handful of disgruntled injured workers, displaying large hand-lettered signs detailing their grievances. They seemed to have little interest in merging with the Occupy Oakland crowd down the street.

Among the more interesting slogans on Occupy Oakland signs observed in a quick walk around the perimeter:
-"Back to the Feudal System?"
-"Robin Hood Was No Lobbyist: Direct Action Gets The Goods"
-"If They Can Bail Out the Bankers, They Can Bail Out Us. No Foreclosures"
-"I Demand Safety For Everybody"
-"Fight The Power! Take It All Back"
-"No More Federal Reserve Bank"
-"Audit the Fed! It's No More Federal Than Federal Express"
-"Liberate Ourselves"
-"First Amendment Guarantees The Right To Peaceful Assembly"
-"Keep Poison Out of Food"
-"One With Everything"
-"Impotent Workers and Jobless"

Is the Occupy Movement the beginning of a new era of worker activism against economic injustice? Or is the energy too diffuse, the message too unclear, and the group too populated by fringe wing nuts?

Julius Young
www.workerscompzone
www.boxerlaw.com

In a 2002 press briefing, then Secretary of Defense noted that

"There are known knowns; there are things we know we know.
We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don't know we don't know. ”

So it is with California workers' comp after this legislative season is done.

Governor Brown has signed some bills, but vetoed other ones. Bills that were opposed by business groups and Brown's Department of Finance were nixed.

I had suspected that Brown might veto a bill that would have allowed an additional exception to the basic 104 weeks of TTD rule. But I had assumed he would sign a bill revamping the Supplemental Job Displacement Voucher system. And if pressed, I would have wagered that he might sign a bill outlawing discrimination in apportionment determinations under Labor Code 4663.

Brown vetoed all three, to the consternation of some CAAA members and small bands of injured worker activists, including the folks at Voters Injured at Work.

The fascinating thing is that Brown seems to invite a more comprehensive approach to workers' comp reforms. But it's clear that that will be only on special terms-i.e. benefit increases will need offsetting cost savings.

Christine Baker and Rosa Moran have been saying this in appearances at various stakeholder meetings this summer and fall.

Applicant attorneys who may have assumed that the Governor was somehow indebted to them because they threw some fundraisers for him are in for an awakening. Likewise, only the extremely naive would assume that the Governor had an abiding interest in rebalancing the harsh aspects of the 2004 reforms.

So what cost savings could be placed on the table, and when?

Are we at a point where many of the system stakeholder groups are basically satisfied with where they are now in the system and therefore not that interested in "rocking the boat"?

How much has been-or could be-squeezed out of the "12 Point" plan of cost savings outlined in the waning days of the Schwarzenegger administration? Has the DWC already backed off of some of the potential cost-savers?

Will we see a revival of the "secret negotiations" between some employer groups and labor lobbyists? Will the Moran-led DWC insist on broader stakeholder participation in talks?

Now that CAAA has prevailed in Almaraz-Guzman, Baldridge and (apparently) Ogilvie, why would CAAA-or labor for that matter- negotiate away an end to rebuttal of the PD schedule, at least for the more severely disabled worker?

If CAAA has "some ideas" to share with Christine Baker and Rosa Moran that have not yet been rolled out to the CAAA membership or the workers' comp press, when will those see the light of day?

Are conflicts between lawyer and doctor interests inevitable if savings are to be achieved?

Does the "Southern California" practice model, replete with doctor-driven claims, liens, MPN escapes, and the never-ending search for "medical control" stand in the way of a solution?

Is anyone willing to look at the systemic costs of brokers?

With UR costs spiraling and questions surrounding the value of UR being increasingly raised, how will that play into negotiations?

And are there out-of the-box ideas lurking out there? What about those unknown unknowns?

These are Rumsfeldian conundrums for consideration by comp connoisssieurs.

Julius Young
www.workerscompzone.com
www.boxerlaw.com