California's unemployment insurance fund continues to sink in a sea of red ink. The fund has been insolvent since 2009, with a current UI fund deficit of over $10 billion.

Projections are that the deficit could grow to $13 billion by 2014.

Already California owes the federal government $10 billion on a loan that has kept the fund solvent. In September 2012 California will owe the federal government a $417 million interest payment. This is real money for a state that is struggling to pay its bills.

It's an issue I've written about before, but which continues to get less scrutiny than public pension problems, education funding, water policy, or a whole host of other public policy issues that plague California.

And while not a workers' comp issue, it is an issue that may affect lots of injured workers who become unemployed after work injuries. Moreover, solutions to the problem could entail increased costs for employers which add to the overall cost of doing business in California. That's the constant backdrop for any discussions of workers' comp reform.

The Legislative Analyst Office has issued a new report on the UI fund.
Key talking points are these:
-Interest payments California owes on the federal loan are a significant
liability for the General Fund. The LAO estimates that over the next decade interest payments on the federal loan could exceed $3 billion.
-UI fund borrowing results in increased federal taxes for California employers as a result of the way credits are figured under FUTA the Federal Unemployment Tax Act).
-there is a structural mismatch between the California UI program's revenues and its benefits which has contributed to the decline in the UI program's solvency
-potential federal reforms could help improve solvency, but are stalled politically at the moment in Washington

The LAO report notes that Governor Brown's proposed 2012-13 budget includes three UI-related proposals which can be summarized thusly:
1. Cover the state interest costs on the federal loan by a loan from the state's disability insurance fund
2.Create a new revenue source for paying the interest payments California must pay to the feds and to repay monies borrowed from the disability insurance fund for 2011-2012. The source would be a new surcharge on employers. The surcharge would not be to pay down the federal loan principal, but rather to fund the interest costs on the loan.
3.Increase the minimum monetary eligibility requirement. Essentially this would require unemployed workers to have made more money in their base period to qualify for benefits.

The LAO analysis recommends that Governor Brown's proposals be part of a comprehensive solution. Here is their recommendation:
"Consistent with our previous reports, California’s Other Budget Deficit: The Unemployment Insurance Fund Insolvency and Managing California’s Insolvency: The Impact of Federal Proposals on Unemployment Insurance, we continue to recommend that, in the absence of federal UI reforms, the Legislature adopt a comprehensive plan to ensure the long-term solvency of the UI fund. We suggest that such a plan be balanced, including both actions on the revenue side (increased employer taxes) and the cost side (decreased UI benefits). We have provided examples of balanced plans in the reports mentioned above. As has been discussed previously, the Governor’s proposals fall short of being a comprehensive plan to address the long-term solvency of the UI fund. However, we find that the Governor’s proposals merit consideration if included in a comprehensive long-term solvency plan. If a future long-term solvency plan included increased employer taxes, dedicating a portion of these increased revenues to making interest payments on the state’s federal loan—in a manner similar to that proposed by the Governor—would avoid significant General Fund costs in future years. Also, we concur with the Governor’s assessment that monetary eligibility thresholds should be updated to reflect changes in wage levels."

The LAO report concludes :
"We recognize that, in light of uncertainty regarding federal UI reforms and the recovery of California’s labor market, the Legislature may wish to take a wait-and-see approach during 2012 and delay enactment of a long-term solvency plan until next year. Enactment of a long-term plan will likely necessitate significant legislative deliberation and compromise among the various stakeholders of the UI system. For this reason, if the Legislature elects to delay addressing UI fund insolvency, we think that is would be premature to enact the Governor’s proposed employer surcharge and monetary eligibility changes. Under this scenario, we would recommend that the Legislature postpone considering the Governor’s proposals until they can be considered as part of a long-term solvency plan. In the interim, continuing the current-year strategy of borrowing from the DI fund to cover the state’s federal interest payment—creating short-term General Fund savings—is warranted by the state’s fiscal condition."

So, like workers' comp reform, reform of the UI system awaits a comprehensive approach. Like workers' comp, it's an issue with wide implications for powerful California business and labor interests, so the stakes are high.

Stay tuned.

In a coming post I will explore the issue of whether workers appealing treatment denials are required to go through the QME process or whether that is elective.

Here is a link to the LAO report:
http://www.lao.ca.gov/laoapp/budgetlist ... KeyCol=555

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

If you are an injured worker (or doctor or employer) unhappy with aspects of California's workers' comp system, you have an opportunity to make yourself heard.

You can register to speak at the hearings the DWC is holding around the state in April.

Have you had problems finding treating doctors on medical networks or problems with utilization review? I'd encourage workers who have had problems getting medical treatment to step forward.

Have you had problems navigating the "QME process"? Time to make yourself heard.

Likewise, workers who were rated as having "zero disability" but who have ongoing wage losses are encouraged to step forward. Were you rated with a percentage award that is clearly disproportionate to the impact of injury on your functioning?


You can register to speak (speakers will need to boil down their comments to 3 minute segments) by replying here:
http://www.dir.ca.gov/dwc/dwc_newslines ... 12-12.html

If you find the session is full, the link noted above includes a sub-link where you can send your written comments as testimony.

With 2012 workers' comp reform efforts being discussed among various stakeholders, the upcoming hearings could be the last best chance for workers (or employers or doctors) to directly speak to Brown Administration policymakers.

As the legislative season moves forward, lobbyists and spokespersons for "stakeholder groups" will be trying to influence the process.

But now is a time that individuals can step forward to be heard.

Julius Young
www.boxerlaw.com

AIG is back in the news,

This time it's in an analysis by New York Times financial reporter Andrew Ross Sorkin, who follows AIG in his Dealbook column.

AIG, which was bailed out to the tune of $182 billion by the U.S. taxpayer, continues to write workers' comp coverage through its Chartis division and a web of affiliated companies.

AIG has been paying the U.S. Treasury back, and Sorkin notes that the U.S. government interest in the company is down to 77% from a high of 92%.

Many a California injured worker gets AIG/Chartis checks and benefit notices mailed from Shawnee Mission, Kansas.

How is AIG doing? The international financial and insurance behemoth recently announced a $19.8 billion profit. Sorkin notes that this was quite a feat for a company that was on its death bed several years ago. AIG had insured many arcane financial products, including credit default swaps, and got caught in the downdraft that took out Bear Stearns and Lehman. For those of you who need to find a good read, Michael Lewis' "The Big Short" is an entertaining and astute tale of those times.

Sorkin scratched beneath the recent hi-fiving over large profits and notes that:
"But if you dug into the numbers, it quickly became clear that $17.7 billion of that profit was pure fantasy — a tax benefit, er, gift, from the United States government. The company made only $1.6 billion during the quarter from actual operations. Yet A.I.G. not only received a tax benefit, it is unlikely to pay a cent of taxes this year, nor by some estimates, for at least a decade."

AIG benefits from a Treasury tax advantage. Here's Sorkin on how this works:
"Here’s the back story: A.I.G.’s tax benefit comes in large part from its immense “net operating losses” during its depths of despair in 2008 before its rescue. The government had to dump $182 billion into the company after it was crippled by bad bets it had made insuring mortgage-backed securities."

Sorkin points out that "The tax benefit comes in the form of something called net operating losses — NOLs in Wall Street parlance — that could be worth more than $25 billion, possibly more. Those losses can be very valuable, in part because companies can spread them over many years to lower or wipe out their income tax bills."

Sorkin says :"However, according to longstanding securities laws, if a company files for bankruptcy or is taken over, it loses the ability to use its net operating losses. A.I.G. would fit that profile perfectly: on the verge of bankruptcy, the federal government took control of A.I.G., exchanging its bailout billions for shares in the company. The government — taxpayers — still own 77 percent of the company, down from 92 percent three years ago."

According to Sorkin:"Still, the Treasury issued “Notices” exempting A.I.G. from losing its right to make use of its net operating losses. In total, the insurer estimated those losses were worth $26.2 billion as of 2009, and it claimed almost $9 billion in other “unrealized loss on investments.”

So we essentially have the U.S. Treasury owned AIG exempted from taxes.
Here is a piece by Mark Ramseyer of Harvard Law School in the Harvard Forum on Corporate Governance and Financial Regulation titled "Can The Treasury Exempt Its Own Companies From Tax?":
http://blogs.law.harvard.edu/corpgov/20 ... -the-treas
Although the Ramseyer article focus on General Motors, it deals with the principles that apply to the AIG situation.

From a workers' comp standpoint it's a good thing that AIG/Chartis continued to operate. While workers' comp was never an area of the company that was in any way responsible for the financial debacle, it would have been disastrous for the California insurance market if AIG and its affiliated companies had gone dark.

But is it a bad thing for the taxpayer if the government owned AIG is exempted from taxes?

Here is Sorkin's analysis:
"All of this brings us to the inevitable questions: How did this happen? Why would Treasury exempt A.I.G. from the law? And if taxpayers own a majority of A.I.G., aren’t we the beneficiaries of the rule-bending?
A Treasury spokeswoman declined to comment, as did a spokesman for A.I.G. However, senior Treasury officials said privately that they had exempted A.I.G. because they did not consider the rescue to be a traditional takeover. The original law preventing companies from using the losses after a takeover were intended to prevent corporations from buying failing companies with lots of losses simply for the tax benefits."

Sorkin notes: "Moreover, the officials said A.I.G.’s tax benefit would help taxpayers because it would raise the insurer’s share price. That may be true, but that assumes the government is able to sell its shares and exit its investment. That’s still a big “if.” (Though I do bet it will eventually happen.)"

Stay tuned.

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

The millennials get a lot of attention in our culture.

Advertisers crave their eyeballs. Social media companies build software and business empires around their habits. Publishing and entertainment companies buckle under the weight of change wrought by their predilections. Sociologists debate whether they are the most apathy-prone generation, or on the verge of becoming one of the most activist.

Will masses who grew up on Beavis and Butthead and The Simpsons turn to Occupy in droves? Will they even continue to vote? Will they care to join unions? Will they marry? How many will be obese? Will they save? Will they even have a safety net for themselves?

I'm not aware of any studies about millennials in the workers' comp system.
How do they view workers' comp? How do they view the tort system?

If there's any research on those issues, I've yet to see it.

But in the process of nosing around, I found a couple of studies that are worthwhile for background understanding of millennials and their current situation.

One is a survey undertaken by the Pew Research Center. The title says it all, "Young, Underemployed and Optimistic":
http://www.pewsocialtrends.org/files/20 ... mistic.pdf

As might be imagined, the recession of the last few years has hit millennials very hard, making it difficult for many of them to gain any traction in their economic status and professional lives. Yet, many remain optimistic over their longterm prospects.

Filled with charts and graphs, it's a fascinating read.

But tied to the millennial story is a sense that there must be a change in the long term politics of the country. What would a budget designed by millennials look like?

Check out the Budget for a Millennial America, a project of the Roosevelt Campus Network:
http://www.scribd.com/doc/44487427/Blue ... al-America

The millennial budget claims that:
"Millennials nationwide have the potential to dramatically reshape the conversation about America's future. In 2010, the Roosevelt Campus Network leveraged the visionary talent of its Network to launch Think 2040--a program that empowers the Millennial generation to reframe the challenges and opportunities facing America and its communities and build toward a progressive future. Using Think 2040 participant contributions, the Roosevelt Institute Campus Network created a Blueprint for the Millennial America that identifies the policy structures and reforms necessary to realize the Millennial vision for America in 2040. The proposals move us toward an “equal, accessible, empowered, and community-minded 2040 America.” The Blueprint addresses six critical areas: Education, Energy and the Environment, The Economy, Health Care, Social Justice and Democratic Participation, and Defense and Diplomacy."

Many of the issues raised in the millennial budget go far beyond the scope of this blog, but it is a start for a debate that is long overdue.

The critical point is that many of us in the "comp community" have millennial kids. Their expectations and interests may be very different from our expectations and interests. In time they will need to decide what kind of social net they want and how much they want to tax themselves to pay for
it. They will need to decide how much they want to continue to subsidize a boomer generational wave that will be long in the tooth in the coming decades.

They'll probably need to come to grips with the very definition of work itself, as technology shifts continue to wreak havoc on old models of productivity and job stability.

Workers' comp will probably change over time in response to some of these forces. Just how and when that will happen we don't know.

Julius Young
www.boxerlaw.com

The California Department of Industrial Relations and Division of Workers' Compensation has announced plans for a series of 6 forums in April to solicit opinions about the direction of reforms to the California workers' compensation system.

The short press release notes the following schedule:

Tuesday, April 10, 2012—West Sacramento, CA 95605
Monday, April 16, 2012—Los Angeles, CA 90013
Wednesday, April 18, 2012—Fresno, CA 93721
Tuesday, April 24, 2012—San Bernardino, CA 92401
Wednesday, April 25, 2012—La Mesa, CA 91942 (
Monday April 30, 2012—Oakland, CA 94612

According to the press release, space is limited and participants will be limited to 3 minutes of oral comment, though they can submit written commentary.

The press release notes that:

"DIR Director Christine Baker and DWC Administrative Director Rosa Moran will host the forums and topics of discussion will include:

Provision of appropriate medical treatment without unnecessary delay, the medical provider network (MPN), utilization review (UR) or other issues
Enabling injured workers to return to work as quickly as medically feasible
Adequate compensation for permanent disabilities
Reducing the burden of liens on the system
Identification of appropriate fee schedules
Reducing unnecessary litigation costs
Assessing appropriate use of opiates and other care
Any other improvements needed"

This is fascinating, of course.

Earlier, Rosa Moran of the DWC had indicated plans to create advisory groups to look at some of these issues. It's not clear whether these public hearing will replace or merely supplement advisory groups, which to my knowledge have not yet been formed.

Of course, some of these topics have already been studied by CHSWC or other groups. In some instances there are already extensive policy fixes that have been advanced. Some fixes would require legislation while others could be done through the regulatory process.

Most of the "stakeholder groups" have ideas on the topics, but in many instances have kept their policy preferences under wraps.Many stakeholder groups may still do so, anticipating that they will be invited to the legislative table as any reforms are brought into bill language.

So will this turn out to be a useful exercise, or a circus? Not clear.

A piece by Greg Jones in Workcompcentral quotes one source as fearing that
"the events could actually be polarizing, with labor and management groups
presenting worst-case scenarios that don't reflect how the system is actually working."

In several posts earlier this year I had mused that despite the rumors swirling about possible 2012 comp reform efforts, it would be surprising that Governor Brown would want to see this potentially divisive issue come to the forefront this year.

Workers' comp has been a thorn in the side of many a California politician, and has a reputation as a tar pit. With comp largely low on the public's radar, comp would appear to be a low priority.

Looks like I may be wrong. Anyway, at a minimum this gives Brown a chance to claim that stakeholders and the public had their say, even if the action is in back room deal making.

But hearings like these tend to raise the profile of workers' comp, and there may be stakeholders who would love to create the perception of a workers' comp crisis even though the market has been quite steady. Labor groups, employer groups, applicant attorneys and doctor groups are all quite capable of packing the hearings with unhappy campers.

So the spin arising from these hearings may have significant effect, weakening some stakeholder positions and strengthening others.

Stay tuned.

Julius Young
www.boxerlaw.com