After months of delays and a shroud of secrecy over the project, the California Division of Workers' Compensation today unveiled its plan for a permanent disability rating schedule fix.

According to the DWC press release, the proposed change in the rating schedule (the "PDRS") would "increase benefits for injured workers by an average of 16 percent".

The proposed change would adjust the future earnings capacity (FEC) multiplier to reflect studies on wage losses of specific injury types.Injury types would be re-ranked.

Spine and wrist injury ratings would benefit from FEC modifications. Knee injury ratings would be downgraded.

The proposal calls for the age adjustment factor to be dropped except for workers under age 21 and over age 52.
Those categories would still get adjustments.

You can find the DWC press release here:
http://www.dir.ca.gov/dwc/dwc_newslines ... 28-08.html

It appears that the shroud over the DWC plan was finally pulled by State Senator Don Perata, who threatened to hold up confirmation of the DIR appointee, John Duncan, until the status of the revise was revealed.

The Governor and DIR officials clearly want that appointment enough to end their silence on the PDRS revise.

Now we go to a short comment period on the PDRS. Comments are accepted in the DWC forum til Friday, May 23.

The actiual proposed schedule is downloadable here:
http://www.dir.ca.gov/dwc/ForumDocs/PDRS/PDRS.pdf

To participate in the forum, you can send comments to: dwcrules@dir.ca.gov

Stay tuned.I'll be covering this in much more depth over coming weeks.

Julius Young
www.boxerlaw.com

Yesterday the California Senate Rules Committee held confirmation hearings on the nomination of John Duncan, Schwarzenegger's appointee for Director of the Department of Industrial Relations.

Apparently there was a sharp exchange between Duncan and Senate Pro Tem Don Perata. Perata may be termed out soon, but at the moment he is still probably the state's most powerful legislator.

Congratulations to the Workers Comp Executive for apparently being the first in the workers' comp press to cover the hearing.

Perata demanded details on the progress of the long-promised revise of the 2005 PDRS (permanent disability rating schedule). Studies have shown that ratings and awards to disabled workers are far lower under the 2005 PDRS.

Perata demanded answers, indicating he felt he was "getting kind of hosed".

The indication? Without prompt detailed answers as to the status of the PDRS revise, Duncan probably won't be confirmed.

The interchange between Duncan and Perata is interesting. Here's the link to the Workers Comp Executive piece:
http://www.wcexec.com/articles/WCE01-20 ... 0.htm.aspx

Stay tuned.

Julius Young
http://www.boxerlaw.com/news.html
(you can subscribe to the blog by clicking on the RSS reader button
at the lower right hand corner under "Most recent entries")

A blockbuster charge recently by ACOEM.....

Weak on your acronyms? ACOEM is the American College of Occupational and Environmental Medicine. California now uses ACOEM standards as official treatment standards for most types of conditions.

ACOEM claims to be a source of "evidence based" assessments on medical treatment best practices.

ACOEM's president, Dr. Robert McLellan, charged that employers are pressuring doctors to downplay injuries. McLellan, a medical professor at Dartmouth, said that employers are "vastly underreporting" the extent of workplace injuries.

McLellan has contacted federal OSHA authorities about his concerns that doctors are being pressured. Some ACOEM members are "in-house" doctors employed by industry. Others are, for lack of a better term, "out-house" in that they are private doctors or doctors in clinics who treat at the request of employers.

You can read the April 19, 2008 Charlotte Observer article (written by Ames Alexander) by clicking here:
http://www.truthout.org/issues_06/042108LB.shtml

ACOEM has been under criticism for being too cozy with industry for many years. University of California faculty have written recent studies of ACOEM documenting ACOEM's historic symbiotic relationship with industry and its record in muting inquiry into the effects of workplace toxins.

You can read about that in a post I did last year, "Mothra vs. Godzilla":
http://workerscompzone.com/index.php?en ... 118-125900

But perhaps Dr. McLellan's statements indicate that change is afoot at ACOEM. It's good to see ACOEM speaking out about corporate pressures on the doctors who treat worker injuries.

Over the long haul ACOEM will need to revise current treatment guidelines. Perhaps the ACOEM of yesteryear won't be the ACOEM of tomorrow.

Stay tuned.

Julius Young
www.boxerlaw.com

(you can subscribe to the blog by clicking on the RSS reader buttons on the right corner column under "Most Recent Entries")

2008 is speeding by.For those of you who aren't following the daily developments in the California comp world, a big-picture review may be of interest.

In many ways, it's been a sleepy start in 2008.

There's been a lull in definitive court rulings on workers' comp issues, and legislative activity has been low profile for the most part.

The year has been notable for several things that haven't happened.

Let's recap a handful of them. New QME regs are still in the comment phase and have not been finalized. The DWC has not revised the permanent disability rating schedule despite earlier statements it would be doing so. Important issues have not been resolved by the WCAB, including issues as to how to apportion old schedule ratings from AMA ratings. The WCAB has not ruled on the Scott Boughner case, a trial level decision challenging the validity of the 2005 rating schedule. And further court decisions clairifying the required methodology for DFEC testimony under the Costa case have not been forthcoming.

Here's my subjective list of the most important developments in California workers' comp for the first third of 2008, listed in no particular order:

1. The Governor reappointed two members to the WCAB (James Cuneo and Frank Brass), fills one other slot (Deirdre Lowe), but did not yet act to fill the other vacant slot.

2. Several appellate decisions held that the old (pre-2005) rating system applied where there was an indication of permanent disability even if the worker was not permanent and stationary pre-1/1/05. These cases rejected the holding of the 4th Appellate District in Vera v. WCAB (2007) that under Labor Code 4660(d) a worker's condition had to be permanent and stationary before 1/1/05 for the old schedule to apply. The leading decision was Genlyte Group, LLC v. WCAB (Zavala) from the 2nd District Court of Appeals. Courts following Genlyte (Zavala) included the 1st Appellate District (in Tenet/Doctors Medical Center v. WCAB (Reddrick)). With a conflict among appellate courts, it's possible that the California Supreme Court will ultimately hear the case. But for now, the weight of authority seems to be against Vera.

3. The 1st District Court of Appeals agreed to hear arguments in a constitutional challenge to the 24 visit cap on chiropractic care and physical therapy enacted in 2003. Arguments are scheduled for May.

4. The DWC continued its work on the EAMS paperless system. DWC representatives assured system stakeholders that the project is basically on track. Physicians and lien claimants expressed great misgivings over
whether the system would have EDEX-like features to enable them to track case status. Legislative oversight hearings were held. There was varying concern over the number of users who may be able to access the system simultaneously. At April's end it appeared that the system will have an August "go-live" date for the WCAB itself. Rollout to "external users" will be later.

5.Benson, Benson, and more Benson. The December 2007 case Diane Benson vs. The Permanente Medical Group continued to roil the comp community. In Benson the WCAB ruled that under the 2004 comp reform law, the decades old Wilkinson case no longer requires that successive injuries to the same body part be rated together. As of late April 2008 Benson has been appealed (and briefed by many key comp stakeholders)but a writ not granted by the time of this post. Meanwhile, the apparent change in the law and the demise of Wilkinson has caused counsel for applicants and defendants to re-analyze many files, in some cases making for drastic change in case values.
Also notable at the board level:The WCAB rejected arguments for an estoppel-based extension of TD beyond the 104 week limit. In the case, Daniel Ramos v. Frito Lay & Sedgwick Management Claims, the trial judge ruled that under equitable estoppel principles, delays in providing surgery extended the worker's eligibility for temporary disability beyond 104 weeks from the date of commencement. The WCAB reversed, and a petition for writ is pending as of the date of this post.

6. The California 3rd District Court of Appeal ruled in Foster v WCAB (Zurich American) that a worker disabled as a result of two successive injuries (which both contributed to the need for temporary disability) could draw only 104 weeks of TD, not 208 weeks. The decision is viewable here:
http://www.courtinfo.ca.gov/opinions/do ... 114651.PDF

7. Legislative activity at the capitol in Sacramento began. Among the bills progressing were the following:
SB 1115 (Migden) (prohibiting discrimination in apportionment)
SB 1189 (Cedillo) (accelerating provision of retraining voucher)
SB 1145 (Machado) (revising governance of SCIF)
AB 1874 (Coto) (dealing with issues related to SCIF)
SB 1717 (Perata) (to increase permanent disability benefits) (the Perata PD benefit bill is here:
http://www.leginfo.ca.gov/pub/07-08/bil ... _comm.html
A bill to regulate workers' comp rates (AB 2692 by Ed Hernandez) appears to have died as of April 2008.

8. The California Court of Appeal upheld a verdict in favor of Palm Medical Group against SCIF for $1.31 million. SCIF had refused to include Palm Medical in its medical network. The theory of the case was the "fair procedure doctrine". Since SCIF's market share has fallen over the last few years from the 50% to 20% range, a medical provider today might have more trouble establishing an unfair exclusion case. On the other hand, the court noted that an inability to compete for patients in 16% to 31% of the market might be significant. This decision may make carriers and employers think twice before excluding providers from networks. The pdf opinion can be downloaded here:
http://www.courtinfo.ca.gov/opinions/do ... 114651.PDF

9. CIGA (the California Insurance Guarantee Association) came under more scrutiny. A hearing was held in March 2008 at the California Senate Banking, Finance and Insurance Committee over allegations that CIGA overpaid in sweetheart deals for services in instances where its third party administrators had relationships with certain vendors. As of the date of this post it appears that if there is any additional action on the issue, it could come from the Department of Insurance, which was said to be doing its own research on the issue.

10.The Workers Compensation Insurance rating Bureau (WCIRB) released an analysis of loss adjustment expense trends (known as "allocated loss adjustment expense" or "ALAE" and "unallocated loss adjustment expense" of "ULAE"). These expenses are essentially the insurer overhead. ALAE are the costs associated with handling claims that can be directly allocated to a particular claim (for example, investigation costs, defense attorney fees, copy service costs and the like). ULAE are the costs of handling claims that can't be directly allocated to a particular claim, i.e. more general insurer overhead items. Bottom line of the study? Benefits paid out to workers by California comp carriers are way down because of comp reform. But insurer overhead is significantly increased as a percentage of calendar year losses. This is an important report, and you can find it at www.wcirbonline.org
More on the implications of this study in future posts.

That's my Top 10.

In addititon, there were think-tank studies, and more studies. These included the following:
-the February 2008 CHSWC report on California Occupational Health and Safety Programs, which you can find here:
http://www.dir.ca.gov/CHSWC/reports/CHS ... althsafety

-the Workers Compensation Research Institute (WCRI) study on the 2003-2004 reforms:
http://www.wcrinet.org/studies/public/a ... CA-ab.html

-the California Workers Compensation Research Institute (CWCI) studies on TD
http://www.cwci.org/newsroom/News_Detai ... easeID=173
and on use of physician networks
http://www.cwci.org/newsroom/News_Detai ... easeID=174
and on medical costs
http://www.cwci.org/newsroom/News_Detai ... easeID=175

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the right column under "Most Recent Entries")

I grew up in the Camel City. (Maybe that's why I went out of my way to ride one of those critters in Marrakech at the foot of the Atlas mountains and why I ventured to Dubai and the Tunisian Sahara).

My Camel City was where they made Salems. And Winstons.

My alma mater is R. J. Reynolds High. The Demon Deacons.

It was a town nurtured by tobacco magnates, textile barons (the Hanes), trucking empires (Malcolm McLean, father of containerized shipping, from truck to rail to sea), and the banking and insurance industries.
Wachovia was born there.

There was no arugula in town, and only one Chinese restaurant. But it was not a joe-sixpack kind of town, either. I didn't know a thing about unions. There were few. North Carolina has always been a tough place for unions.

Wake Forest University came later, when I was a kid. Like a cake being baked from scratch, it was plopped down into part of the old Reynolds estate just several minutes from my house.

I would go on later to UNC-Chapel Hill law school. Michael Jordan was shooting hoops there at the time, and John Edwards was in the class behind me.

If you'd have told me then that I would be sitting here years later looking at the Golden Gate bridge writing a workers' comp blog, I would have fainted.

Life is funny like that. We meet people along the way that influence us. We have mentors.

I had mine in comp. People like Sacramento's Gene Treaster. My partners Stewart Boxer and Mike Gerson.

People who gave advice, but who primarily led by example. People who were willing to make that extra client call even if it meant they were the only one left to cut off the lights on the way out the office door.

So it was with interest that I saw Barak Obama spending today in Winston-Salem on a day which could prove definitive for his campaign.
Needing and trying to differentiate himself there in the Camel City from Rev. Wright, a man who had obviously mentored him in many ways.

Maureen Dowd analogizes it to the classic Greek stories-warrior must slay the monsters and eventually deal with his own father figure in order to claim the throne. It'll be interesting to see how that plays out.

Perhaps its far afield from the issues usually raised in this space.

But if you're reading this as a workers comp professional-ye lawyers, examiners, brokers and doctors who read this space- take a moment to think. Who mentored you in comp? How did you get here in the first place? And how did you claim your own rightful role?

Julius Young
www.boxerlaw.com