State Controller John Chiang says he'll continue to resist Schwarzenegger's efforts to impose the minimum wage on state workers as long as there is no state budget.

But Chiang now has to devise a legal strategy to deal with the California Court of Appeal 3rd District decision rendered yesterday in Gilb v. Chang.
In that decision, 3rd DCA justices Rick Sims, Vance Raye and Arthur Scotland upheld a ruling by Sacramento Superior Court Judge Timothy Frawley that allows the Department of Personnel Administration to order Chiang to cut state worker wages when there is no state budget.

Here's a pdf of the ruling:
http://kqed02.streamguys.us/anon.kqed/b ... DCApay.pdf

Chiang has noted that the state's computer and accounting system do not make it feasible to do the reductions that have been ordered.

The 3rd DCA opinion was rendered in connection with the 2008 Schwarzenegger order to lower state worker salaries due to the 2008 budget increase.

But in response to Chiang's claims about the computer and accounting systems the 3rd DCA noted:
"We decline to consider the feasibility issue, because it involves variables that may or may not recur in the future, depending on the content of any future pay letter by the DPA, and the state of the evidence in any future litigation. We will not speculate as to the future capabilities of the payroll system that will be in place at the time of future budget impasses. We recognize the Controller's payroll chief attested that a pending upgrade (the 21st century Project) will not solve the problems that make unfeasible compliance with the DPA's interpretation of White v. Davis. However, that does not necessarily excuse or preclude the Controller from implementing other changes to make compliance feasible."

In coming days we'll see whether Chiang appeals the 3rd DCA decision to the California Appeals Court or whether he pursues an injunction in Sacramento Superior Court against the 2010 pay cut order, or both.

Chiang has vowed to fight. It's a fight of great interest to employees of the WCAB and the Division of Workers' Compensation.

Here is Chiang's response to the order from Debbie Endsley, Director of the Department of Personnel Administration:
http://www.sco.ca.gov/Files-EO/07-02-10lettertoDPA.pdf

And here is the brief statement Chiang made on the 3rd DCA ruling, noting that it is not a simple software matter to reduce pay and then comply with wage payment timelines once a budget is enacted:
http://www.sco.ca.gov/eo_pressrel_contr ... uling.html

Here's a link to the text of the 2003 California Supreme Court ruling in White v. Davis (133 Cal.Rptr. 2d 648, 30 Cal 4th 528, 68 P.3d 74):
http://scholar.google.com/scholar_case? ... i=scholarr

Stay tuned.

In a few days I'll be doing a post of the top 10 developments in California workers' comp for the first half of 2010.

Julius Young
www.boxerlaw.com
(have an iPhone or iPad? you can create a workerscompzone.com widget/button by clicking on the cross to the left of the url box)

Today Governor Schwarzenegger made good on this threat to cut state employee salaries if there's no state budget.

Schwarzenegger has ordered most state worker pay cut to the federal minimum wage until there is a budget. That is likely to be after a long, hot summer.

The Administration claims that it can do that under the ruling in White v. Davis, a 2003 California Supreme Court case.

Based on the experience we've seen with the state worker furloughs over the past year, it's unlikely that "user funded" agencies such as the California Workers' Compensation Appeals Board will be exempted if Schwarzenegger has his way.

Since the budget chasm is so wide, reaching a budget compromise in an election year may set all records for delay. So even if state workers are eventually given back pay after a budget deal is struck, the economic consequences could be devastating for many of the folks at the WCAB and at the DWC.

Wait. There's more.

According to a piece by Jon Ortiz in today's Sacramento Bee, "Some employees, such as doctors and lawyers, would get no pay because federal exempts them from any minimum wage requirement". Huh?

Would that include judges too?

But State Controller John Chiang, a Democrat, has announced that he will resist the Schwarzenegger order. There's a pending case in the Court of Appeal over the legality of a similar order by Schwarzenegger in 2008.
So this battle between Schwarzenegger and Chiang may be settled by the courts, perhaps months from now.

It's all part of a Kabuki dance as the state tries to stay afloat.

If you see your favorite WCAB clerk or judge popping a few Valium, now you know why.

Here's a link to the Schwarzenegger minimum wage pay letter:
http://blogs.sacbee.com/the_state_worke ... letter.pdf

Stay tuned.

Julius Young
www.boxerlaw.com

In a recent post ("When Push Comes to Shove"), I discussed the New York Times report on the incident when Meg Whitman apparently shoved an eBay subordinate.

Whitman has refused to give a full accounting of the incident or the ensuing out of court settlement with Young Mi Kim.

Thus, it's with interest that I read a piece in CalBuzz today which noted the shifting versions of the event given by Whitman. The CalBuzz article puts this in the context of a number of other topics on which Whitman given inconsistent versions, including her voting record, her residence, and the contents of her campaign ads.

Here's the article, worth checking out:
http://www.calbuzz.com/2010/06/wannabe- ... sequences/

The link to my post on the shoving incident is here:
http://www.workerscompzone.com/index.ph ... 617-220806

This should be a matter of great interest to those interested in employment law and workers' rights. What does it say about Whitman's personality and her fitness for office? These are not trivial questions.

The Whitman campaign should open the files on the incident so voters can judge for themselves.

Stay tuned.

Julius Young
www.boxerlaw.com

Your intrepid blogger has just returned from the 2010 CAAA summer convention, held in Monterey.

For those in the trenches of comp practice, these are times of some ambiguity. It's an ambiguity that affects applicants and defendants, providing a fertile basis for settlement for creative lawyers.

As usual the CAAA convention showcases some of the cutting-edge legal theories from some of California's top applicant attorneys. The CAAA convention is not a liquored-up schmoozefest of convention junketeers. It's a focused set of meetings where top-flight materials are distributed.

Here's a sampling of some themes and arguments that were discussed:

The Guzman case has been argued, but not yet decided. At the moment doctors are in a difficult position. Unless asked the right direct questions by counsel, many doctors feel uncomfortable using alternative AMA formulations of the most accurate" impairment.

But asked the right questions, many QMEs/AMEs may be willing to identify impairment by analogy or use alternative charts, tables or methods to describe impairment under the AMA Guides.

The Ogilvie case remains something of a puzzle. A case that initially seemed to call for easy use of EDD earnings data has morphed into a much more sophisticated analysis of post-injury earnings loss within the context of "Montana factors". Labor market experts may often be necessary, and there are struggles over how and when the experts will be paid, though Labor Code 5811 probably requires cost reimbursement.

The occasional WCAB panel decision in Almaraz/Guzman II and Ogilvie provides some guidance in cases at the margins.

The COLA case (commonly known as the XYZZ case or the Duncan case)
is in limbo, as the California Supreme Court has accepted the case but not yet set arguments.

Social Security cases (I was a conference speaker on the Social Security panel) may have a synergistic effect on the comp case. RFC forms filled out by physicians may be useful in Ogilvie arguments and in disputes over the application of Labor Code 4662 (conclusively presumed permanent total disability).

Vocational evidence is likely to be frequently used in cases involving 4662 (proving total permanent disability "according to fact"). 4662 is not a rebuttal of the rating schedule. Either you have total disability according to fact or you don't.

There's great interest in recognizing that disabilities are synergistic. The combined values chart is rebuttable.

The Mendoza v. Huntington Hospital WCAB en banc case will be appealed. Mendoza allows a defendant to request a panel QME even after the defendant has denied the claim.

There's developing interest in exploring rebutting the GAF conversion scale by using the AMA Guides Chapter 14 in psyche cases. The GAF to WPI conversion scale appears to be an arbitrary construct and as such may be vulnerable to attack.

It's clear that the demands on California workers' comp practitioners have grown. Cases can be much more complicated, with Benson issues, apportionment issues, old vs, new schedule issues, rating issues, UR rebuttal issues, and on and on.

As panelist Alan Gurvey noted, "when you walk through the jungle, be prepared".

Stay tuned. I'll be discussing some of these concepts in coming posts.

Meanwhile, if you're an iPad or iPhone user, you can create a button to reach workerscompzone.com. After agetting to workerscompzone.com via your search engine, click on the cross next to the url box to "add to home screen". You'll create a workerscompzone button to give you quick access to the blog.

Julius Young
www.boxerlaw.com

In these challenging economic times, you'd think that policymakers would want to keep as many jobs here in California as possible.

Good, skilled jobs. Like jobs for physician UR reviewers.

But currently utilization review docs don't have to be California licensed.
In 2008 Governor Schwarzenegger vetoed an attempt to impose a California license requirement on UR reviewers. That bill, carried by now termed-out Assemblywoman Sally Lieber, was AB 2969.

AB 933, carried by Assemblyman Paul Fong of Cupertino, would require UR reviewers to be licensed. Here's a link to the current bill language:
http://www.leginfo.ca.gov/pub/09-10/bil ... en_v98.pdf

One advantage of requiring California licensing for UR docs is that it will cut down on the problem of treating docs having trouble contacting UR because of time zone issues. Currently a California treating doctor who is in surgery in the morning has almost zero chance of speaking to a UR reviewer in Florida who is gone by the time the Cali treating doctor gets back in the office from the surgicenter.

These are the sort of little realities that frustrate doctors. Many end up in the costly and time consuming QME process.

There's a good chance the Governor will veto AB 933 if it reaches his desk. The bill advanced out of Senate committee yesterday, but still faces an uncertain future.

With all the concern about generating California jobs and revenue for California, it's hard to defend allowing out of state doctors to do California utilization review.

It's time to keep the jobs here.

Julius Young
www.boxerlaw.com