Wednesday, January 18, 2012, 08:27 PM - Political developmentsWorkerscompzone will be covering tomorrow's CHSWC meeting in Oakland.
The agenda promises to be interesting:
DIR Director Christine Baker will be appearing and offering remarks.
Seth Seabury of RAND will be presenting on "Permanent Disability Ratings Under the AMA Guides".
Frank Neuhauser of UC Berkeley will be discussing "Permanent Disability Awards Under Senate Bill 899".
Previous RAND studies have been influential in systemic reforms. So many stakeholders will probably be looking with great interest at what conclusions come from RAND now.
Both RAND and Neuhauser have close ties to Baker, who headed CHSWC before Governor Brown appointed her to be Director of the Department of Industrial Relations, the umbrella agency over the California Division of Workers' Compensation.
And with the conventional wisdom being that there may be efforts to put together an omnibus comp reform package this year, the think tank studies can set the tone of the debate and influence the political agenda.
Readers wishing to attend can appear January 19 at 10am at the auditorium at the Elihu Harris State Building, 1515 Clay Street, Oakland.
I'll provide some commentary tomorrow on what I hear.
Sunday, January 15, 2012, 10:19 PM - Political developmentsFew of us mourn the demise of occupations such as switchboard operator or railroad car porter.
Many of us now bank online, book our own flights, stream our movies, and read downloaded books, so tellers and travel agents and projectionists and bookstore clerks are endangered species.The telecommunications, entertainment, publishing and news gathering industries are constantly evolving in new ways.
It's all part of the structural changes in the economy-along with the shrinking domestic manufacturing sector-that has so many concerned where they and their children will fit in.
This year from time to time I intend to muse upon some of those trends and how the basic notion of work is evolving.
The conventional wisdom is that job growth will be in service sectors of the economy.
But if tech increasingly gives us tools to do things for ourselves, will tech render many of those services obsolete?
What caught my eye on this subject over the weekend was an article by Stacy Finz in the San Francisco Chronicle, "Tablet Computers Take the Wait Out of Waiting Tables".
For years there have been systems which transmit table side orders taken by the waiter to the kitchen. But the concepts are being refined and expanded.
Finz profiles the Presto tablet which is being used at Calafia Cafe in Palo Alto. Diners using the tablet can order food themselves, track their order, and pay with the tablet, even splitting checks. Diners can also play games with the tablet and can research wines.
Presumably tables would turn more quickly, and the need for waiters and waitresses would be reduced.
Some diners may be turned off. Making the dining process too mechanical may be a turn-off. After all, earlier attempts to "automate" the dining process such as 50s era "Horn and Hardart" ultimately failed:
But some customers, such as one quoted in the article may love it because they "dread human interaction".
Food service is a huge source of jobs in the economy, of course.
So are we on the verge of transition in one of the world's oldest industries?
It's not clear in this instance, but what is clear is that many "service sector" jobs previously thought to be immune to technological change may in fact be at risk in an era of smartphones, tablet computing, and rapid developments in robotics and artificial intelligence.
In such a world, how do we value work? And who gets to work, and who is not given work?
Here is a link to the article on the Presto:
http://www.sfgate.com/cgi-bin/article.c ... 4/MNQN1MOO
Tuesday, January 3, 2012, 08:42 PM - Political developmentsHear Ye, Hear Ye......Calling all soothsayers to Dr. J's Big Crystal Ball Booth. Come hither from ye lien trials and your AMA assessments....Come let your imagination fly through the twists and turns of the Future!
Those who may at the end of 2012 recognize a perfect score shall hereby be entitled to a beverage at the Oakland saloon of your choice.
Here, in no particular order, are your choices, with "none" as an option for each item. In some instances there are may be more than one "correct" answer:
1. With regard to multiple current vacancies on the California Workers' Compensation Appeals Board, in 2012 Governor Brown will: a) Leave the seats vacant, thereby achieving some budgetary cost savings; b) appoint some political figures to the WCAB; c) eventually appoint experienced attorneys to the WCAB; d) appoint some non-lawyer members; e) none
2. The expanding lien problem widely perceived as plaguing the California comp system will: a) continue to grow; b) recede somewhat as the effects of expanding MPN use and the Valdez case take effect; c) be addressed by attempted regulations and legislation that are ultimately NOT adopted in 2012; d) be the subject of adopted regulations or legislation that by the end of 2012 do begin to reduce liens in comp cases; e) none
3. Regarding Obamacare and the comp system, by the end of 2012:
a) Key elements of Obamacare will have been declared unconstitutional, leaving Obamacare having no impact on workers' comp; b) Employers will continue a trend toward dropping employer-sponsored health coverage, raising fears of a spike in claims of workers desperate to get some coverage for various health maladies; c) Obamacare survives 2012 court challenges, more workers get coverage and the pressure on workers' comp systems decreases; d) Obamacare survives and it becomes apparent that increased coverage for those previously uninsured will lead to doctor shortages and access problems which may affect workers' comp; e) none
4. Up in River City at California's capitol, 2012 will be a legislative :
a) Dud, as key stakeholders shy away from efforts at any comprehensive reform, preferring the current stasis; b) Another year of minor tinkering, as in 2011; c) A tumultuous year, with several stakeholder groups unveiling a comprehensive reform package that sets off a major political war in the capitol, divisions among some labor groups and squabbles among some stakeholders; d) A historic year, with a consensus driven deal worked out among stakeholders and approved the the Governor; e) None
5. By the end of 2012, the much-criticized WCAB "EAMS" computer adjudication system will be:
a) Still under study, with little apparent change; b) Scrapped; c) Getting better, with incremental changes and adaptations; d) Modified in a major way to make it more user friendly; e)none
6. On the regulatory front, 2012 will be:
a) Very active, with the DIR taking up liens, copy service costs, physician payment rates, compound drug pricing, MPN rules, utilization review rules and QME rules; b) moderately active, with the DIR completing a couple of the issues listed in a), but holding off on some of the Schwarzenegger 12-point cost savings initiative issues; c) Inactive, with the DIR deferring to negotiations among stakeholder groups over cost-savings that might offset a benefits increase; d) Active principally only on regulatory issues mandated by statute; e) None
7.2012 will be:
a) a slow year in the courts, with few significant workers' comp decisions; b) a year in which the Ogilvie case goes back up to the WCAB and Court of Appeal; c) notable more for WCAB en banc decisions than for Court of Appeal decisions; d) a year in which conflicting Court of Appeals decisions emerged on a key workers' comp issue; e) none
8. Average workers' comp premium rates charged California employers will in 2012:
a) remain stable; b) actually decrease, as carriers bid for business in a 2012 economy that continues to struggle; c) increase somewhat, as carriers claim the need for cost increases due to increased medical cost inflation; d) increase dramatically, with carriers claiming that they need double digit increases to cover loss ratios; e) none
9. Hot issues in California workers' comp in 2012 will be:
a) what can be done to control medical costs and loss adjustment expenses in workers comp; b) whether to scrap the current QME system; c) the financial impact of the Almaraz/Guzman and Ogilvie cases on the industry; d) the underground economy and its effect on the comp system; e) none
10. California faces a long list of visible hot button issues: dueling initiatives to reform California's budget and taxation system, the solvency of the unemployment insurance fund, efforts to reform public pensions, efforts to reform the California's DREAM Act, implementation of healthcare reform, school and UC funding, the future of the Occupy movement, to name a few. At the end of 2012 we will find that:
a) workers' comp was hardly a blip on the 2012 radar: b) workers' comp joined the hot button issue camp; c) political horse trading on some issue(s)
had implications for workers' comp; d) workers' comp stakeholders were beginning to look towards the Gavin Newsom, Dave Jones and Kamala Harris era; e) none
You can e-mail your answers to me at email@example.com.
If you have predictions for significant 2012 California workers' comp events,
please share them. Confidentiality respected for those who request it.
Quiz connoisseurs may enjoy last year's quiz, "2011 California Workers' Comp Quiz":
http://workerscompzone.com/index.php?en ... 102-095809
Here is a link to the 2009 quiz:
http://workerscompzone.com/index.php?m= ... 107-115444
Wednesday, December 21, 2011, 09:48 PM - Political developmentsIt's that time of year when our collective unconscious is focusing on sugar plums, flying reindeer and roasting chestnuts.
You deserve such relaxing delights. After all, if you're reading this you survived fistfights at the mall over teaser sales merchandise, copper thieves who hoped to harvest your home wiring, and you're just glad that the Stux worm is slithering somewhere in Tehran rather than coursing through your laptop.
Pat yourself on the back for surviving another year in our hoary culture. Time to put your feet up and think back on the year.
There's a little drama left yet in the quickly passing 2011 California workers' comp scene.
It's a drama...a lawsuit actually....given prominent coverage by Workcompcentral's Western Bureau Chief Greg Jones in a recent article on www.workcompcentral, titled "California Lawsuit Alleges Defense Firm Encouraged Fraudulent Billing".
The piece by Jones covers a wrongful termination lawsuit filed against a large statewide workers' comp firm, Adelson, Testan, Brundo & Jiminez.
(my disclosure here: I have worked with an alum of the Adelson firm but have not discussed this matter with that person. Also, at any given time I have probably have at least one or two dozen active applicant cases being litigated against defendants repped by various Adelson firm offices, but I have no inside knowledge about the firm's billing and personnel practices and I respect many of the firm's individual attorneys).
The plaintiff in the lawsuit is Richard Unitan, an attorney who joined the Adelson firm after a decades long career in Southern California.
Indications are that the lawsuit will be a slugfest. Managing partner and firm founder Steve Testan has been quoted as vehemently challenging the allegations of Unitan and his counsel, Jeffrey K. Winikow.
Unitan charges that he was dismissed for failing to bill at a level that "is virtually impossible to achieve with accurate and honest billing practices".
Specifically, Unitan appears to be charging that Adelson attorneys were required to bill a minimum of 3,000 hours per year and that the structure of the firm's billing and timekeeping requirements encouraged attorneys to churn and put "a good deal of fiction into billing statements".
This is alleged to be done in "incremental billing", where lawyers bill at hourly fractional rates in 1/10 of an hour increments.
There are a variety of billing arrangements used by California workers' comp defense firms, including some "flat fee" billing arrangements.
If this case proceeds to trial it may provide a fascinating window into the economics of workers' comp defense practice. But if 3,000 hours is the de facto standard at a firm, that's a lot of hours.
Could it be true that compressed defense billing rates encourage insurance defense firms to pad their bills?
This sort of issue was at the heart of a nasty dispute several years ago in San Francisco, when civil litigation firm Tarkington, O'Connor & O'Neal was accused of billing irregularities and overbilling. The Tarkington firm eventually won a verdict against its insurer over comments that the insurer's auditor had made to the press about the firm's billing practices. The situation was different than the Unitan Vs. Adelson situation, but it's a reminder that reputations are fragile and that it's good to withhold judgment until one has the facts.
In Workcompcentral, Jones notes that plaintiff attorney Winikow claims that Unitan was the victim of a corporate culture that encourages and pressures attorneys to act not in the best interests of their clients to resolve disputes efficiently, but rather in the best interest of the law firm. Testan is quoted as saying that incremental billing is standard in the defense industry and that Unitan was terminated for a number of reasons unrelated to billing requirements.
Keep your eye on this one in 2012.
Sunday, December 18, 2011, 04:19 PM - Political developmentsMy longtime law partner Mike Gerson was awarded a well-earned honor last week: the Barry Williams Lifetime Achievement award, bestowed by the East Bay Chapter of CAAA.
Barry Williams was a legendary figure in California workers' compensation before his untimely death. Williams had always been noted for his encyclopedic knowledge of California workers' compensation law and his tenacious representation of workers. Although Williams never received the appointment to the statewide WCAB that he had sought, Williams' career and memory lives on among many of those who had the pleasure of working with him.
Having worked with both Barry and Mike, it was doubly a treat to see Gerson get this award.
Unlike some lawyers who may be in it "just for the money', Mike has always had a passion to represent the underdog and an interest in the development of the law.
Since my office is adjacent to his, I've often had the difficult task of telling Mike to pack up and go home for dinner. As the nights wear on, Mike has often been oblivious to time, caught up in preparing for trial or formulating case strategy.
Time and time again I've seen him achieve superior results, cutting through the legal fog with his wit and persistence.
Thinking about this reminded me of an old newsletter message Mike had written in 1990 while serving as statewide president of the California Applicants Attorneys Association.
Here are some excerpts from that 1990 piece:
"Recently, I trudged my way back from the Board with the worries of the world heavy on my shoulders. The defendants ran the clock on an all-day trial that took 14 months to calendar, and another four months might go by before a new trial date gets set."
"I was fatigued, depressed and frustrated by a system for which I continuously apologize to our clients. representing injured workers has become overwhelmingly distressing. As I heard my office, I thought "My God! I do do good for injured workers!" And as I thought this, I chanted under my breath as I marched, "I do do good". I swung open the office door exalting-"I'm a do-gooder, that's what I am! And I'm proud of it"."
"Enthusiastically, I reached for my 50-or-so messages and the stack of incoming mail, and said hello and good-bye to my secretary as she left for the day. So began my typical work day at 5 p.m."
"This type of work requires commitment, sympathy and compassion for the victims of work injuries, and a passion to help others. You either have this kind of passion or you don't."
It's this sort of philosophy which has distinguished Gerson over the years.
Like professionals and business people who excel in any field, the true leaders in this type of law have a vision and a commitment that is genuine.
It's been my great pleasure to work with Mike over the decades, and I'm thrilled to see him be honored.
Stay tuned. In the coming week I'll be doing a post on the Top 10 Developments in California Workers' Comp.
Workers' Comp in 2011