Tuesday, December 23, 2008, 09:34 PM - Understanding the CA WC systemiPhones, iPods and social networking sites aren't the only newfangled things coming out of Silicon Valley......
Now we have "Aguilar", courtesy of the San Jose-based 6th Appellate District of the Court of Appeal. A link to the text of Aguilar (Hertz Corporation vs WCAB and Manuel Aguilar) is included at the bottom of this post.
Aguilar deals with LeBoeuf issues under the "old" rating schedule. Dueling vocational experts testified as to whether Aguilar, a car detailer, was feasible for vocational rehabilitation. Aguilar had a long work history but limited English language skills and was virtually illiterate.
Two of the three justices noted that Aguilar's physical disability rating would be "around 60 percent", noting that was "even with his significant
physical restrictions". Aguilar was noted to use a cane for ambulation at home and to and from his car. He sometimes required a walker for more extensive outings.
The vocational rehab counselor was of the opinion that with his language and literacy limitations, Aguilar was not able to do even very light duty jobs.
If the correct concept is that the defendant insurer takes the employee as they are, it would seem that it's the injury which creates the inability to compete in the open labor market (pre SB 899) or loss of earning capacity (post SB 899). After all, one of the first cases most law students read is a case about the "eggshell skull" plaintiff, dealing with proximate causation.
Moreover, Aguilar argued that language and illiteracy were "secondary factors" and that the physical restrictions were the "primary reason" he could not benefit from voc rehab. Aguilar was an "old schedule" case, and Aguilar cited the LeBoeuf case in arguing that if he was not able to benefit from voc rehab, he was 100% disabled.
That was an argument accepted by the trial judge and by the WCAB on defendant's appeal. Essentially, the trial judge found that Aguilar was not feasible for retraining and was therefore unemployable. But for the injury he would not have been totally disabled.
Defendant Hertz decided to take the issue to the Court of Appeal.
The 6th Court of Appeal does not reject the ongoing validity of the LeBoeuf opinion. But it does trim LeBoeuf where language and illiteracy are a factor in non-feasiblity for retraining.
Citing the voc rehab testimony, the court noted that Aguilar might be employable despite his physical restrictions and need to use a walker if
"he had better language skills and education".
Like hundreds of thousands of hardworking folks, Aguilar (who worked as much as 80 hours a week and who had been employed by Hertz for around 15 years) had not finished school and had emigrated from Mexico (there is no indication that he was here illegally).
In the court's interpretation of the voc rehab testimony, language and literacy was the factor that took him from being disabled but employable to disabled and infeasible for retraining and thus unemployable.
The problem, as noted by concurring Justice McAdams, is that this case may cause defendants to claim an "Aguilar factor" is cases henceforth.
Each human has natural strengths, abilities and skills.
Even the most talented "Renaissance man" (or woman) has things they can never do. I could never be a sommelier, a fighter pilot, an astrophysicist, an acrobat, a jeweler or a strip club pole dancer. Each involve special skills, intellectual traits, attention to detail, physical agility or sex-based characteristics I don't have.
I also tend to get numbness in my hands and feet when it's cold and wet, a characteristic which would probably make me not feasible for work around water or in very cold settings.
These factors may seem extreme. But could any number of such factors be raised to show that an otherwise disabling injury isn't the cause of loss of all ability to compete or loss of all earning capacity?
If you're a dumb-ass and can't work, is there a dumb-ass apportionment?
Where does this stop? Not at language, obviously. What if the worker was developmentally disabled (e.g. "retarded"). Would such a result obtain, or would we find that offensive?
In a future California that become more "brown" and more Spanish speaking by the day, will some "illiterate" Appalachian migrant pear-picker who falls from a Sacramento Valley orchard find that his inability to speak Spanish is a factor in his "infeasibility"?
Not jumping the shark here. Just asking questions. Questions that concerned Justice McAndrew enough to write a rather eloquent concurring but cautionary separate opinion. McAndrew cautioned against overuse of the "Aguilar factor".
Among my questions about the Aguilar case, I'd note:
-Aguilar was noted to have sustained two separate knee injuries, one to his left knee and one to the right knee, as well as a cumulative injury to wrists and shoulders and an ankle; despite this, no mention is made of the Benson case. Benson (depending on what the First District Court of Appeal does) would seem to have major implications for Aguilar's claim on remand
Here's the link to a pdf version of the case:
http://www.courtinfo.ca.gov/opinions/do ... 032438.PDF
On another topic, here's a link to a piece on a suit filed to challenge the Governor's ability to order worker layoffs and furloughs:
http://www.latimes.com/news/local/la-me ... 0801.story
Stay tuned. I'll be finishing out the year with a column on Top 10 events in California Workers' Comp in 2008, and a quiz for the cognoscenti on likely events in 2009. Happy holidays to all my readers.
Tuesday, December 23, 2008, 08:52 AM - Political developmentsLots of stuff is getting destroyed these days.
In a deflationary environment, there is "demand destruction". Oil prices go to $50 a barrel. Prices for recycled paper, copper and other materials have fallen off a cliff. Across a wide range of the economy, there are no buyers, only frustrated sellers.
Business models are in transition even for many long-successful enterprises.
But one big concern for workers is whether there will be additional pressure for workers' rights and benefits to devolve. Yes, devolve.
Baby boomers have lived in a time when American workers rights basically were evolving.
The folks outside of Silicon Valley did not get a chance to have on site gyms and Friday beer bashes, but they did enjoy increased benefits in the latter part of the 20th Century (an era that is starting to sound quaint).
But that's been stalling for some time now, as wages have stagnated and many company sponsored health plans have been eliminated or cut back. And manufacturing jobs were outsourced, often while executive pay packages soared.
Even in the wake of a gargantuan bailout, some of the bailed out financial institutions are awarding huge bonus packages.
Union membership tanked, failing to keep up with changes in the type of IT workforce and service economy that was developing.
Workers' comp benefits have been cut in many states over the past decade, with carrier profits ballooning as a result.
Financially stressed, many companies are now cutting 401(k) contributions. Many California employers hope for changes in wage and hour laws as part of a 2009 budget crisis solution.
Are we in a race to the bottom?
Here's a warning from Bob Herbert of The New York Times:
http://www.nytimes.com/2008/12/23/opini ... .html?_r=1
Stay tuned. Later today I'll be posting a piece on the Aguilar case which was recently decided by the California Court of Appeal. Following that, I'll be posting the Top 10 Developments in California Workers Comp for 2008.
Monday, December 22, 2008, 09:06 AM - Political developmentsBeing a chief executive in government is a difficult thing. You have to deal with your own party, your own base.
Gov. Schwarzenegger continues to have problems in that department. We now know he'd like to run for President (he can't). But acting erratically during last week's budget negotiations, no one seems to know what's in his head:
http://www.latimes.com/news/local/la-me ... umn?page=1
Meanwhile, Obama faces an early test in dealing with his labor base. When Bush stepped up at the last minute to provide short-term bailout funding to GM and Chrysler, terms included targets for wage reductions to levels at other U.S. auto plants. Those would be the non-union factories of German and Japanese automakers in the South.
That may be popular with taxpayers, and it may allow Detroit's workers to keep working. But it is hardly going to stem the trend of declining union membership in the USA.
The wage reductions are targets, and it will be up to Obama and his people to deal with the details. As I said, it's not always easy dealing with your base.
Labor is hoping to reverse the declining membership trend.
Most labor advocates were heartened by the appointment of Hilda Solis to be Secretary of Labor. Solis has been a longtime friend of working people's interests as a member of the California legislature and as a member of Congress, elected from a Los Angeles district. I've seen her speak, and she seems to be the real deal.
It's not clear whether Obama will push for quick action on the Employee Free Choice Act, the Holy Grail for many in labor, or whether he will put this lower on the agenda. This will be a divisive issue in Congress and much political capital will be spent.
The Pastor Rick Warren controversy and the difficulty finding a CIA director who will satisfy critics of CIA rendition, torture and Guantanamo policy has shown that Obama may have trouble with his base.
Here's an interesting take on all of this written by Peter Brown of the Quinnipac Poll (what follows in quotes is by Brown) that appeared in the Wall Street Journal:
" President George W. Bush, in giving the auto companies a financial reprieve, presented President-elect Barack Obama and the new Congress the choice of putting another nail into organized labor’s coffin, or starting off the Democratic era with a decision that will rile most of the American people."
"Left for the Democratic president and even more Democratic Congress — both more pro-union than their predecessors — is the knotty question: Should the government insist on conditions for an auto bailout that could put industrial unions even closer to the endangered species list by reducing their value to the membership?"
"The Bush bailout that provides cash for the auto makers to keep them operating through March, leaves it to the new administration and Congress to find a long-term solution to the problem, but the bailout contains provisions that require the United Auto Workers by the end of 2009 accept a pay and work rule package roughly on par with the one in place at nonunion, foreign car plants in the South."
"The Obama White House and the Democratic Congress have the power to change that requirement once they take over."
"Knowing that was likely to be the case, union leaders earlier this month refused to sign a deal with Congress for a bailout that included parity, which would mean UAW workers would have to accept the lower pay and more flexible work rules."
"They are hoping to make fewer concessions to the taxpayers when the changing of the guard means Democrats control all the levers of power in Washington next month."
"Yet, the new president’s embrace of bailing out the Big Three without requiring their workers sacrifice to keep their jobs, especially when those concessions would just mean they will be treated like other American workers who work on assembly lines where the weather is warmer, would require him to spend substantial political capital that he might prefer to save for other battles."
"Of course, no one at the UAW — or for that matter among congressional Republicans who for political reasons would be just as happy if that Democratic Party patron disappears — will couch the decision about that portion of the proposed bailout in those terms."
"That would be tacky, and would raise emotional issues better left unsaid at this point as the future of the American auto industry hangs in the balance."
"But make no mistake about it: If the UAW can’t get a better deal for its members than workers get at Nissan, Toyota or Honda in Dixie, at some point those on the Ford, Chrysler and General Motors assembly lines up North may start wondering why they are paying union dues."
"A Last-Ditch Opportunity
The irony is that all this comes at a time when both friends and foes of the union movement have viewed the election of Mr. Obama and a heavily Democratic Congress as a last-ditch opportunity."
"With 12.5% of U.S. workers – including just 7.5% of those in the private sector – belonging to unions these days, organized labor sees the coming years as a last chance to reverse a trend that has taken it from major political power broker to an oft-ignored voice, even within the Democratic tent."
"What ultimately happens to the car companies and the strings that will be attached to any federal bailout will be the best indication of whether the new Democratic majority will be willing and able to help unions grow, rather than continue to wither."
"It would be naive to think that the next four years offers anything but a throwback to yesteryear, when the unions and business groups battled it out for public opinion and favorable government-mandated rules relating to organizing and business operations."
"When President-elect Obama takes office Jan. 20, it will be the first time in 14 years that Democrats control both ends of Pennsylvania Avenue. These years have witnessed a growing global economy based on intense wage competition that has contributed to the further diminution of the union label in the U.S."
"Declining Union Membership
Roughly a third of workers belonged to a union when Dwight Eisenhower took the oath of office 52 years ago, the high water mark for organized labor in the U.S. When Democrats Lyndon Johnson, Jimmy Carter and Bill Clinton were inaugurated in 1964, 1976 and 1992, that share had dropped to 30%, then 28%, and finally 16%, respectively."
"The Obama administration would seem likely to be the most pro-union of the last half-century. During his campaign for the Democratic nomination, Mr. Obama said he would walk a picket line as president to show his solidarity with workers."
"Although he didn’t make any similar remarks after clinching the nomination, President-elect Obama is clearly much more committed to increasing the role and clout of unions in the American economy than Messrs. Johnson, Clinton, or Carter."
"All three of the most recent past Democratic presidents came from the South, which was never a bastion of organized labor."
"But whether the new president can revive a movement that has fallen on the hardest of times in a world where flexibility and wage competition have become the economic coins of the realm is another question."
"Business and labor are already girding for a gigantic fight over a union proposal to do away with secret ballots in union elections. Business, which calls the proposal the biggest revision of labor laws in the last 75 years, says it would allow union organizers to publicly pressure workers to sign election petitions."
"Union leaders say the secret ballot requirements are biased in favor of management. If the change becomes law, labor thinks unions can organize many industries that are mostly non-union."
"The structure of any final deal to save the auto makers — and what it will require from the UAW members – will be an early indication of whether the Obama administration will be able to do anything to reverse the decline of unions in America."
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Sunday, December 21, 2008, 09:36 AM - Medical treatment under WCAs we head toward the end of the year, Sacramento appears stuck in gridlock over the state's deepening fiscal crisis.
Many state workers are facing forced furloughs which could amount to a 10% pay cut. With California unemployment at 8.4%, hundreds of infrastructure projects are being halted due to the state's cash position.
Building trades, operating engineers, SEIU workers, state professionals....all find themselves being thrown under the bus as these events unfold.
Unfortunately, the magnitude of the problem is such that it's unlikely that the legislative solution will be to tax our way out of these cuts.
This is the backdrop for California's workers as we head into the holiday season.
In the next couple of days I'll be posting my take on the Top 10 developments in California workers' comp this year and doing a post on the recent Aguilar case (regular blog readers may have noticed a glitch over the last couple of days when drafts of several unfinished posts found their way to the net).
Meanwhile, the California Workers Compensation Institute has unveiled its study on medical provider network usage. No big surprises there.
CWCI documents the growing usage of MPNs in California workers' comp. That has been crystal clear to those in the comp community for several years.
Here's a link to the study:
Stay tuned and check back for the Top 10 events piece.
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Friday, December 19, 2008, 08:00 AM - Political developmentsI've noted before that Republican demands on a budget deal might include
a relaxation of California's wage and hour laws.
Schwarzenegger has rejected the Democratic budget gambit I mentioned in yesterday's post. In doing so, he raised the labor law issue.
Here's the story:
http://www.venturacountystar.com/news/2 ... printer=1/
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