Wednesday, September 8, 2010, 12:41 PM - Understanding the CA WC systemWorkers' Compensation Appeals Board court administrator Keven Star apparently has plans to require all attorneys become e-filers.
That's the word in a piece written by Greg Griggs, an editor at Workcompcentral.com.
Griggs quotes Star from a visit Star made to the Oxnard WCAB.
Currently there are under 500 e-filers. Most attorneys still participate in the computerized WCAB system, EAMS, by filing optical character recognition documents which must then be scanned by WCAB staff.
Any mandated transition would be a ways off, however. Regulations must be drafted. There would be a comment period, and possible re-drafting.
And all of this will be in the hands of a new administration. While it's possible that there will be some hold-overs, it's safe to guess that there will be a new court administrator and new faces at the DWC, whether Brown or Whitman prevail.
Like many in the comp community, I've always thought that EAMS had many problems. The rollout of EAMS was rocky. Some of the EAMS spokespeople were arrogant and in truth stirred up resistance to the project by refusal to acknowledge concerns of the community.
Some problems persist. Forms are still too way long. Sorting through documents and handling online documents and exhibits at a trial is cumbersome. Bulk lien filing has been an issue.
But Boxer & Gerson has participated as e-filers. There are advantages, including being able to check liens easily, being able to select court appearance dates, being able to set up walk-thrus quickly, and being able to get application numbers quickly.
Firms that specialize in comp who aren't e-filers may end up finding it to their liking, somewhat to their surprise.
But care needs to be taken with the transition. Some small firms are not tech savvy at all, and the process will be hard for those dabbling in comp.
Friday, August 27, 2010, 08:54 PM - Understanding the CA WC systemI've just returned from Ingmarland.
Years ago when I was in theological school (getting a master's as a Rockefeller Brothers fellow), I did a thesis on the philosophical underpinnings of Ingmar Bergman's films. For those of you who have never seen The Seventh Seal, Persona, Hour of the Wolf, Shame, Scenes from a Marriage or any of the other Bergman masterpieces, let's just say they are not your basic Adam Sandler fare.
Bergman has now passed away. We live in a world that is less Chekov, Pirandello, Ibsen or Strindberg and more Homer and Marge and Bart.
Ugly Betty would have passed on playing chess with Death.
This was my first journey to Bergman's home, Sweden. And my first time in Denmark.
Listening to wannabes covering Dr. Dre and Snoop Dogg in a central Stockholm festival, I could have sworn I was in L.A.
But the semblance ended there.
Clean and safe streets...polite, stylish, well groomed, well educated people....efficient public transit.....a mixture of beautifully preserved old buildings and recent innovative architectural designs...
Stockholm and Sweden are both visually stunning. And the countryside in both countries is lush and appealing.
Aside from long, cold dark winters there's little to not like.
Heck, they even have the Icebars where George the Bartender could be serving cocktails in an ice glass sculpted out of a glacier.
But what's happening with workers' comp in Scandinavia and the Baltic states? Unfortunately there was not time to visit any hearing boards to see matters firsthand.
But for those of us in the workers' comp field I did find an interesting.
comparative analysis of Scandinavian and Baltic workers' compensation systems.
It's titled "Current Challenges for Nordic Workers Compensation Systems" by Janne Pekka. The presentation was done for an insurer, Munich Re:
http://www.munichre.com/app_pages/event ... _reini.pdf
What's so interesting is Pekka's comparative chart showing what is covered and what is not, whether there are private insurers or not, and how benefits are integrated with other available benefit systems.
Sweden and the Baltic states (Latvia, Lithuania & Estonia) currently do not have private insurers involved in workers' comp.
Pekka lists hot issues in the 3 Scandinavian countries that do have private insurers in the comp market:
-Denmark's change of the definition of "accident"
-the impact of lower premium volume on Finnish insurers and debates
over changes in Finnish comp law
-profitability challenges for Norwegian insurers and issues surrounding
transition to centralized claims handling
In California we sometimes get obsessed with our own system, forgetting that other places have figured out other ways to compensate their workers.
Everyone is trying to get it right, not just us.
Friday, August 20, 2010, 12:14 PM - Understanding the CA WC systemIn a victory for disabled workers, the California Court of Appeals 6th District has upheld the decision in the Guzman case (actually known as Milpitas Unified School District v. WCAB and Joyce Guzman).
While not final/final, its starting to look like the Almaraz/Guzman II decision of the WCAB will survive.
Workerscompzone is on vacation. But when I return to my office I'll be analyzing Guzman in a video point-counterpoint format I'll be launching soon with a leading defense attorney. More about that another time.
The Court of Appeals has yet to decide to hear the Almaraz II case, and in fact may never grant a writ to hear the case.
Unless a conflict develops between different California Court of Appeal districts, it's hard to imagine the California Supreme Court wading into this controversy. After all, the California courts have extended great deference to the WCAB.
So, it would appear that Guzman is here to stay.
This pretty much undercuts some of the self-serving experts who packaged themselves as keepers of the pure AMA Guides flame.
The decision by the 6th District makes it clear that doctors and judges are not bound to administer cookie cutter justice based on shibboleths of a narrow AMA Guides approach.
As the 6th District notes, "we take a broader view of both its text and the statutory mandate". The 6th District noted:
"We cannot expand the statutory mandate by changing the word "incorporate" to "apply exclusively." Nor can we read into the statute a conclusive presumption that the descriptions, measurements and percentages set forth in each chapter are invariably accurate when applied to a particular case. By using the word "incorporation," the Legislature recognized that not every injury can be accurately described by the classifications designated for the particular body part involved. Had the Legislature wished to require every complex situation be forced into preset management criteria, it would have used different terminology to compel strict adherence to those criteria for every condition."
Also worth noting in the opinion:
-the 6th district notes that "The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides. pp.4,5.)"
-the Court also notes that "The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms."
This leads the 6th District to note the importance of clinical judgement and the concepts of Chapters 1 and 2 of the Guides.
At the end of the day under Guzman, the "how and why" expressed by the physician will be critical. The 6th District notes that the physician's medical opinion must constitute substantial evidence.
Defendants will argue that Guzman applies only to extraordinary and complex cases. The decision notes that "Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected."
So we can expect defendants to focus on challenging doctors as to the how any why they are using other descriptors under the Guides. For example, the Court noted "if Guzman's carpal tunnel syndrome is adequately addressed by the pertinent sections of Chapter 16, an impairment rating that deviates from those provisions will properly be rejected by the WCJ".
On the other hand, noting in this decision prevents a physician from using other portions of the Guides where the Guides would otherwise not describe the condition qdequately. That's where we'll see doctors using their clinical judgement.
In the coming year or two we'll see the WCAB setting forth parameters in some cases as to how far doctors can go in using other charts, tables or methods. And we'll see in some cases how much how and why analysis the examining physician must provide before successfully departing from the "straight AMA" analysis.
But for the moment, chalk this up as a big win for disabled workers.
Here's a link to a pdf of the Guzman II decision:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf
And here's a link to the decision of the 6th District:
http://www.courtinfo.ca.gov/opinions/do ... 034853.PDF
Monday, August 9, 2010, 09:46 PM - Understanding the CA WC systemWhile attending a yearly meeting today in San Francisco for the Lexis Nexis California workers' comp editorial board, I got into a discussion with several attorneys about dabblers.
Dabblers are attorneys who dabble in workers' comp.
In the past, at the boards I've frequented (largely Oakland & San Francisco, and Sacramento earlier in my career) there were always a group of dabblers who came and went.
These were usually attorneys who did a handful of cases a year. Sometimes they were personal injury attorneys who handled an occasional comp case.
Sometimes they were general legal practitioners who decided to try their hand rather than refer out the comp case. Others were young attorneys who tried to get a foothold in comp but never attracted more than a smattering of cases. Some may have been induced to handle the comp case by their doctor or chiropractor friend who was treating the worker.
Some experienced attorneys tried to be welcoming of the dabblers. After all, everyone has to start somewhere.
But others winced as dabblers handled cases without even a patent understanding of comp terminology or case law. Any attorney who has sat as a judge pro tem, as I have, will understand.
Discussing the matter today during a java break, several of us noted that the dabblers are disappearing.
Comp has become too complicated for the dabblers. With UR deadlines and MPNs, Benson, Almaraz/Guzman, Ogilvie, lengthy EAMS forms, and AMA Guides that are so complicated, many of the dabblers are quickly flummoxed. Even top-shelf applicant attorneys feel challenged and stressed.
The day when young lawyers took a case or two and "fell into comp" is disappearing.
The dabblers need to dabble elsewhere.
Wednesday, July 21, 2010, 09:00 PM - Understanding the CA WC system"Workers' comp insurance becomes money loser"......
That's the title of a piece released today by Dan Walters, veteran political columnist of the Sacramento Bee.
Walters is widely admired in Sacramento and other political circles for his decades of experience as observer of the California scene.
Among the points made by Walters:
-in 2006, insurers earned nearly 27% on employer paid premiums of $17.3 billion
-premiums dropped to $9.1 billion in 2009
Walters essentially notes what I've been saying for some time.
Insurers reaped record profits in the early years after the 2003 & 2004 California comp reforms. Benefits paid to or on behalf of workers during those early years were a pitiful percentage of premium paid by employers.
Then came the housing crisis, the fall of Bear Stearns and Lehman and AIG, the tanking of the economy, and soaring unemployment.
As premium has declined (in large part because of a weak economy), costs have risen, especially medical costs.
In a number of other posts I've noted that cost containment and overhead expenses have risen sharply as a percentage of premium written.
So there's been less margin, leading the Schwarzenegger DWC to refuse to comply with the statutory mandate to revise the permanent disability rating schedule to increase benefits.
Meanwhile, benefits for workers with permanent disabilities were cut.
Using figures from a WCIRB 2008 Legislative Monitoring report, intended statutory reductions in permanent disability reduced permanent partial disability payments by $600 million. This included reductions due to changes in the law of "apportionment", PD reductions for a "return-to-work adjustment", and reductions in the number of weeks of disability paid out for many injuries.
Moreover, worker attorneys charge that PD benefits have been effectively cut by the 2005 permanent disability rating schedule and the refusal to amend the PDRS.
But as time went on, industry profits have been squeezed.
Citing the recent report from the Workers' Compensation Insurance Rating Bureau, Walters notes that "...insurers lost $1.5 billion on workers' compensation insurance policies last year after breaking even in 2008."
Walters acknowledges that insurers have been clamoring for rate increases. But Insurance Commissioner Poizner refused to recommend rate increases, and most insurers have been loathe to raise rates very much. Walters notes that there will be a new Insurance Commissioner elected in 2010.
Walters predicts that the stage is set for more workers' comp battles in the future, "making it a key, if little known, aspect of the gubernatorial duel" in the current Governor's race.
The WCIRB report, "2009 California Workers' Compensation Losses and Expenses" can be found here: