Thursday, January 29, 2009, 09:36 PM - Political developmentsThe week isn't yet over, but you may be feeling a bit cranky.
You wouldn't have wanted a $35,000 antique commode with legs, but it galls you to see that former Merrill Lynch chief John Thain spent over a million redecorating his office at a firm bailed out by taxpayers. You're pissed at sharpsters from Wall Street grabbing big bonuses in late 2008 while their enterprises sustained billions in losses.
You're still struggling to understand why they allowed Lehman to fail. Or how Lehman failing could be big enough to bring down the pillars of the temple.
You're sick of hearing about banks that refuse to lend after being allocated money to lend.
You've probably seen a scowling WCAB or DWC employee this week. Who can blame them for being dispirited as they face a mandatory salary cut?
You may not believe that more tax cuts are the solution. Trickle down economics doesn't float many boats these days. Supply siders seem to be out of a supply of ideas.
And you may be feeling anxious about where the stimulus is headed. Knowing that California's budget impasse must be solved soon-somehow-you wonder whether California's eventual budget solution will blunt the local impact of federal stimulus?
In this "Bailout Nation", how much transportation infrastructure and solar and wind energy capacity will actually get built in your part of the state? Will there be ferries, more metro stops, high speed rail, new schools or just windy promises and grants to community based organizations that will fritter the money away?
Is the "no earmarks" bill anything but an extra-extra-extra big bale of goodies lumped together to cover something for every interest constituency? And how much paper money is the Fed printing on those presses anyway?
Do you have that nagging feeling that no one has the answers except the gold bugs?
So, as the week fades, you look for something positive. Some quantum of solace.
Here it is: the Lilly Ledbetter Act.
President Obama has now signed the first significant employment law passed during his Presidency. The Lily Ledbetter Fair Pay Restoration Act reverses a ghastly United States Supreme Court decision which held that workers with equal pay claims had to sue within 180 days of the discrimination.
Ms. Ledbetter, who worked for Goodyear Tire in Alabama, did not discover until years later that men had been paid more for the same type of work she was doing. Under the Supreme Court's interpretation of
the law, she had 180 days to sue from the first time Goodyear paid her less than those co-workers. Never mind that she had no idea that women were being paid less than men for doing the same work.
Worker advocates were never able to get the Bush Administration to support a bill to reverse the 5-4 Supreme Court decision.
This has now become the first bill signed by Obama.
Here's a link to the Washington Post piece on the bill:
http://voices.washingtonpost.com/44/200 ... id=topnews
And here's a link to a piece by New York Times columnist Gail Collins, who reminds us of several courageous women who fought for worker fairness:
http://www.nytimes.com/2009/01/29/opini ... nted=print
It's something to celebrate amid the gloomy economic news.
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Wednesday, January 28, 2009, 07:54 AM - Political developmentsInsurance Commissioner Steve Poizner announced yesterday a 6% reduction in license fees that are paid by California insurance agents and brokers.
Poizner is also reducing the special assessment paid by insurers that is targeted for fighting fraud.
How's that for pandering?
California's budget is billions of dollars in arrears. State employees may be furloughed. Poizner's Department of Insurance budget may be slashed. Unable to pay its bills, California's state government is about to go off a cliff.
But as a candidate for Governor in 2010, it's never too early to start handing out goodies to your constituency. Is that the sort of vision that a Poizner candidacy will be offering to California?
Say it ain't so, Steve.
Incidentally, the figures from 2007 WCIRB reports show workers' comp broker commissions and fees of $942 million, 7.1% of premium. Some comp brokers are making huge profits.
Meanwhile, Poizner is reducing the most common licensing fee paid, from $144 to $135. The projected savings (or loss in revenue to the State of California) is said to be $3.5 million annually.
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Sunday, January 25, 2009, 08:24 PM - Understanding the CA WC systemThe applicants attorneys conference in San Diego drew to a close today.
In some coming posts I'll be commenting on some of the nuggets from the CAAA confab.
Hold that video?
That's the upshot of today's interesting presentation by Los Angeles attorney Lawrence I. Stern of Mallery and Stern.
Defendants in California workers' comp frequently secure sub rosa films and videos of injured workers. Like most attorneys, several times each week I'll find a DVD or VHS tape of clients in my mailbox.
The client may have been filmed from a van parked down the street from his house. Or the client may have been followed to the mall or the park or the beach. One client was followed from the doctor's office in the Bay Area to a casino in the foothills of the Sierra.
As cameras and microphones and night vision equipment have gotten smaller, video surveillance techniques have become much more sophisticated. And often much more invasive. Stuff the CIA had several decades ago may now be a tool in the hands of your local investigator.
While the videos can sometimes significantly undermine the worker's case, the videos are many times not really that significant.
But are they legal? Can the carrier take film pretty much whenever and wherever they choose to? Are there legal standards that must be met before video surveillance can be initiated? Or is the carrier able to commission video whenever and under whatever conditions it chooses, from public settings to invasive videos taken inside structures, from malls, stores and stadiums to dwellings?
It should be noted that the surveillance process sometimes causes embarassment and disruption in the worker's neighborhood. Neighbors
sometimes become involved since they observe unknown vehicles loitering around the neighborhood or following the worker. Neighbors may fear for the worker's safety or their own safety.
The worker's reputation in the community can be damaged in the process, as the worker "loses face". The worker and his friends and family may be put at risk where the worker is followed on the highway.
If shown to the treating physician, even benign videos may cause some physicians to become uncomfortable, not wanting to "get involved" if they feel the worker is "under the microscope".
Thus, surveillance video can have some significant collateral consequences.
In essence, can the carrier commission a fishing expedition of surveillance in hopes of catching the worker in a lie about activity? Does an injured worker lose all expectation of privacy?
After all, the cases of Allison v. WCAB (1999) 64 CCC 624 and Pettus v. Cole (1996) 61 CCC 975 both contain extensive reference to privacy rights. Privacy is central to the California Confidentiality of medical Information Act (Civil Code 56 et seq.) and is part of the California Constitution, Article I, Section I.
Stern reminded the audience (which contained a large number of defense attorneys) that there is a foundational requirement for films and videos.
Civil Code 1708.8(g) requires that there be a "showing" that is supported by "articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity". Business and Professions Code 6521 requires that investigators be licensed.
Civil Code 1708(g) would appear to require that the decision to take film or video be based on an articulable suspicion, not simply on a generalized hope that something will turn up in the surveillance.
Such an articulable suspicion might be generated by a tip from a witness, co-worker or informant or at the suggestion of a treating doctor or QME. Other investigatory techniques such as an internet search or credit check may reveal evidence that the claimant may be working while claiming disability.
In those instances, a Civil Code 1708(g) showing of "articulable suspicion" would appear to be easy to establish.
But not so in many other instances where films or videos are obtained.
One wonders whether surveillance is actually generated in many cases at the whim of a claims adjuster or attorney, to "see if we can get something on this guy". Perhaps the worker or worker's attorney has irked the defendant. The defendant may think the "injury has gone on too long". The employer may be suspicious of the worker's doctor who is certifying the disability and treatment. The carrier or defense firm may have policy of doing surveillance on most cases from time to time in order to "turn up an occasional fraud".
In none of those instances does it appear that an "articulable suspicion" was established before the surveillance. Without such a showing, the films/videos may be inadmissible.
In the future I expect that we will see more challenges to the admissibility of film and video.
We'll see applicant attorneys demanding that the "articulable suspicion" be revealed before the applicant attorney will stipulate that the video/film be shown to the QME or AME.
We'll also see efforts to impose civil Superior Court liability on carriers and law firms that initiate video where there was no basis for articulable suspicion.
Not every bogus video will generate a viable claim for civil damages. But in the future I predict we will see some significant civil liablility in egregious cases where there was no "articulable suspicion" and where the very act of doing surveillance essentially became a harassment tool against the worker. In such cases it will be noted that the privacy violation was compounded by the carrier sending the films/videos to the treating doctor. If shown in the video, the family and friends of the worker may attempt to state a claim as well.
Carriers, beware. Sometimes it may be better to hold that camera.
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Saturday, January 24, 2009, 11:52 AM - Understanding the CA WC systemWhen most people think of workers' comp, they think of accidents at work.
Occupational diseases due to workplace chemicals and other hazards get less attention. Under the recently departed Bush administration, there was little progress in addressing the hazards of workplace chemicals.
I'm happy to see the New York Times piece by Felicity Barringer that's now online. Here's a link to the story of Ed Abney, who contracted a devastating neurologic condition after years of solvent exposure at work:
http://www.nytimes.com/2009/01/25/us/25 ... nted=print
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Friday, January 23, 2009, 04:35 PM - Political developmentsI'm at the winter Applicants Attorney Conference in San Diego.
Here's a live blog on "The Most Important Cases". I'm paraphrasing some comments as they go along (caution: the following are a selection of the opinions of various panelists and may or may not be accurate or represent a consensus among experienced comp professionals)
First up is a discussion of the Hertz (Aguilar) case.
-CAAA is requesting that Aguilar be depublished.
-The court's treatment of writ denied cases as legal precedent is troubling. Aguilar marks a big departure from LeBoeuf, which looked at the impact of THIS injury on THIS worker.
-If it stands, Aguilar will open the gate for consideration of all kinds of factors: how tall is the applicant? does he have a diploma? Every worker has a different situation with respect to some limitations.
-the applicant attorney in Aguilar has filed a petition for review by the California Supreme Court
-the Aguilar case reminds one of the literacy tests given to blacks so they couldn't vote, i.e. a racial factor to bar a benefit
-Aguilar is not an apportionment case, it's a discrimination case
-employers take people for what they are; Aguilar would punish people for what they are not
-Aguilar would import a "perfect man" standard into comp and takes Labor Code 4663 way too far
-attorneys should refuse to allow applicants to answer depo questions which pertain to this sort of discrimination; let the defendant push the issue at a motion to compel at the board; the board needs to be aware of the ugly side of discrimination that the Aguilar case entails
-Aguilar is an example of a court lacking judicial restraint
Now they've moved on to talk about the Sandhagen case, decided by the California Supreme Court.
-we now know that UR is mandatory; the carrier does not have the option to use 4062 (request for a QME) on treatment issues. Only the applicant's side can use 4062 to request a QME on treatment issue
-the problem is that 4062 really creates delays since it takes forever to go through the QME process. If the treater really wants the worker to get the treatment, they need to work with the attorney to write an adequate report supporting the treatment request
-the applicant can still go to court on the treater's report if the pre-UR medical report is strong enough; but it's a strategy concern if you have to go back to get a supplemental treater report clarifying the treating request and in that event will you run into problems at the board?
-if your treating doctor's report is substantial evidence, why delay by going through 4062 evaluation
On to Minvielle V. County of Santa Clara (36 CWCR 199):
Bill Herreras notes:
-in Minvielle the worker had received an old award of 27.5% for a 1992 injury. The rating on a later 2004 injury (to the same body part, his back) was 31%; the WCAB panel found under the Kopping case that the defendant had the burden of establishing overlap where there is a prior award
Now on to E&J Gallo vs WCAB (Rubio) 73 CCC 1206 :
-the applicant in Rubio denied the existence of an earlier award; the defendant could not locate a copy of the alleged award. The court noted that if a prior award exists, under Kopping vs. WCAB, the defendant has the burden of establishing overlap. Also, the defendant had the burden of proof to establish a prior award and the percentage attributable to the earlier award.
-Gallo may have known the earlier award, but they did not produce the documents for the WCAB to prove the award
-note that there is an old pre AMA system and then under the AMA for a back injury there is ROM and DRE used to rate impairment.
-a doctor may try to retroactively apply current rating language under the AMA to the worker's condition years ago; but you can not subtract an old ROM rating from a current DRE rating
-how can you measure an old injury under an AMA scenario? In her opinion if you have a prior award, you are in 4664 and you must produce the underlying evidence that was the basis of the award if you want to prove overlap
Mark Kahn and Joe Capurro:
-discussing double-dip apportionment attempts under 4663 and 4664
-why should defendant get a deduction from current AMA impairment rating for an earlier award where the earlier pre-AMA award was based on subjective complaints, which were a basis for pre-AMA rating
-raises issue of whether WCAB under Tyler and McCune does or does not have a duty to develop record on earlier award if defendant has not bothered to do so
The discussion moves to Barr v. WCAM and SIBTF v. WCAM (Dorigo).
-these cases involve the issue of costs of presentation of vocational expert testimony on diminished future earning capacity. In Dorigo the court granted the applicant's petition, finding that the board improperly failed to exercise its discretion to award costs for the fees of the vocational expert.
-the test for reimbursement: at the time the expert's efforts were obtained, was it reasonable and necessary at the time they were incurred. If not, the costs are not reimbursable
-can you file a petition for costs at the time you obtain the expert's report? Capurro thinks you should be able to do so but acknowledges differences of opinion on the panel
-not being able to get the costs paid up front puts the woker and attorney at a disadvantage; but the other side of the coin is that the case is not developed at that point.
-one possibility is to try to award the costs subject to later assessing the costs against the applicant if it does not appear reasonable
-if the defendatnt gets an expert report, that should be a factor, so that the applicant has a level playing field and is not at a disadvantage compared to the defendant
-there is a lack of clarity as to what is required to rebut the schedule; don't get hung up on what is substantial evidence. In her practice the costs are being paid
-it may help to get a doctor to say that he/she wants vocational opinion
The discussion moves to Safaeipour v. Sierracin Corp. 36 CWCR 258.
-in this case the panel QME had found a compensable psych injury. Afterwards, defendant hired a lawyer, who sought to depose the treating doctor. Defendant sought removal where the judge had refused to allow the defense attorney to depose the treating doctor's opinion (the treater's notes were illegible). The WCAB granted removal, ordering further discovery.
-Feenberg notes that the panel QME is not always correct; the parties do have discovery rights
-it's not clear whether there were due diligence problems but those could dictate a different result if defendant did not pursue its discovery in a timely fashion.
Up for discussion next is L.A. County Professional Peace Officer Association v. County of Los Angeles (73 CCC 1235). The panel notes that in this case the worker sought to sue in Superior Court where the employer dealt with accrued vacation pay differently for individuals on industrial leave than for employees who had non-industrial disability. The case is significant because Labor Code 132 was held to be not the only remedy. The worker could pursue a separate civil remedy.
The panel then mentions Tapia v. Skill Master Staffing, 73 CCC 1339. The lien claimant has the burden of establishing the reasonableness of their charges. An unsupported billing in and of itself does not establish reasonableness, even if the insurer presented no rebuttal evidence.
Judge Mark Kahn notes that the lien claimant misapplied the Kunz case on liens (Kunz is 67 CCC 1588). $22,00 for 3 hours of surgery seemed unreasanable on its face and in Tapia the WCAB upheld an award of $4,700 to the surgery center.
The panel then discusses Medrano v. WCAB, 73 CCC 140
There is a discussion about the survival or non-survival of the "ghost statues" and whether voc rehab survives after 1.1.09
Mark Kahn notes that the VR survival issue is coming up soon in cases in Los Angeles. Some have argued that VR survives via Godinez and the reference to "ghost statutes". Since Kahn will be sitting as a judge on cases, he does not want to give his current thoughts on whether the statutes extinguished rehab rights that existed before 1/1/09.
Now they discuss Lane V. Zurich American, 36 CWCR 254. Under Lane, the applicant can seek treatment outside the MPN but it will be at his own expense if he was provided adequate notice of the existence of the MPN.
Also under discussion: Ramirez vs. Drive Financial Services & One Beacon Insurance Company, 73 CCC 1324.
Bill Herreras notes this is an important case setting forth the standard for setting penalty amounts under Labor Code 5814(b). The decision noted that the amount of a penalty is discretionary and sets forth a number of factors for the judge to consider in determining a penalty.
Heading toward the end of their program, they move to issues regarding rebuttal of the 2005 PDRS.
Note is made of Rosendin Electric v. WCAB (Bojorquez) 73 CCC 1123, where the board panel suggested a future roadmap on DFEC issues might be coming in future decisions.
Capurro notes that an unpublished panel decision in the Arledge case (not sure if I have spelled it correctly, but it was written by Commissioner Lowe) is significant. CAAA has a copy and will be circulating it. In that case, the app put on DFEC testimony that the 39% rating did not reflect the diminished future earning capacity.The trial judge, who rejected the DFEC rebuttal analsysis, had noted the expert relied on functional capacity information that was not reviewed or commented on by any doctor. The board panel apparently agreed. The Arledge decision may shed some light on how the WCAB will deal with DFEC issues.
That's the report from San Diego this afternoon.
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