The Oscars.

Looks like "No Country For Old Men" has smoked the intense period piece "Atonement" and the social justice thriller "Michael Clayton".

Oscars is a sacred night for many of us. Perhaps you grew up watching Doris Day flirt with Rock Hudson. Or trying to figure out what Michelangelo Antonioni was saying in all those art house films. Or watching Indiana Jones escape from the jaws of doom. Or you're really from Gen Next...you cut your teeth listening to the South Park brats curse the bastards who killed Kenny again.

Me? Growing up in the Camel City, North Carolina (better known as Winston-Salem), labor themed films weren't exactly the favorite for Saturday nights at the drive-in.

But unless you're a cultural hermit, along the way you've probably seen a labor themed flick or two. Some of them are worth revisiting.

Lots of them were themed around labor-management strife. "On the Waterfront" . "Hoffa" . "Last Exit to Brooklyn".

We love coal miner films. "Matewan". "Harlan County". More arcane is "Salt of the Earth", about a New Mexico mining strike done by Herbert Biberman, one of the blacklisted Hollywood 10 in the McCarthy period of the early 1950's.

Tales about struggling workers. "Norma Rae". "9 to 5".

Workers struggling to make sense of the corporate world. "Roger & Me".

Workers who aren't always heroic. "Clerks" (1994):
http://www.imdb.com/title/tt0109445/

Bored and restless office workers. Mike Judge's 1999 masterpiece, "Office Space". Don't know it? Here it is:
http://www.imdb.com/title/tt0151804/

"Il Posto", a flick about Italian youth trying to adjust to work in the corporate world:
http://www.imdb.com/title/tt0055320/

Documentaries. "Rosie the Riveter".

Here's a good data base-"Blue Collar Filmography" by Julia Lesage- if you're interested in checking out more labor themed cinema:
http://www.ejumpcut.org/archive/onlines ... ovies.html

California's disabled workers sometimes star in movies. Movies taken by undercover investigators, most of which don't really show all that much.

Perhaps someday there'll be a worthy script to get disabled workers'
stories on the silver screen.

What's your favorite film featuring labor or disabled persons' issues?

Stay tuned.

Julius Young
www.boxerlaw.com

(you can subscribe to the blog by clicking on the RSS buttons at the bottom of the lower right hand menu)

A cold winter night.

Sometimes comp seems like a lazy backwater.

The legislature hasn't geared up. Action on comp anti-discrimination will move, but at a slow pace.

The WCAB is in transition, still sporting one vacancy.

Important DWC action on PD schedule reform and QME regs seems to drag on and on.

After quickly resolving one burning comp issue by its Brodie decision, the California Supreme Court is moving at a snail's pace in scheduling
hearings on other comp-related cases.

In the larger world, life goes on. Politics. Hillary and Barack have just finished a strange Texas debate where they pretty much agreed on everything except mandates on healthcare reform. John McCain is defending himself against a New York Times piece-heavy on unnamed sources-insinuating that he had an affair with a lobbyist doing business with his committee. Perhaps we're looking at another 4 years of Paula Jones and Gennifer Flowers payback. The world. Our Belgrade embassy attacked by Serbian thugs in the last gasp of pan-Serbian vitriolic nationalism. The economy. Concerns that we're entering a period of stagflation-inflation and recession.

Maybe it's a good night to wander in the wonkisphere.

Tonight's wonkisphere feature: the California Workers' Compensation Institute January 2008 analysis "Temporary Disability Outcomes Accident Years 2002-2005 Claims Experience". Written by Alex Swedlow and John Ireland, the research summary (and charts) are available by clicking here:
http://www.cwci.org/pdfs/ResearchUpdate108_v6.pdf

The bottom line? No big surprises here. SB 899 reforms have reduced the duration of TD claims and the average amount of TD paid per claim.
Very few claims are exempt from the 2 year TD limit. A small number of diagnoses provide the majority of TD claims. TD claims are being reported more quickly.

But there are many issues NOT addressed by this study. The quality of care in MPN networks. The lack of an income replacement system for workers with serious injuries who are unlucky enough to be disabled for more than 104 weeks. Abuses of a utilization review scheme that may in some cases prolong TD by failing to authorize testing and treatment on a prompt basis. The distribution of TD savings to employers rather than increased insurer profits. The inequity in exempting some specific types of injuries from the 2 year TD cap but not exempting others from the 2 year cap.

Do your own wandering through the wonkisphere.

Stay tuned.

Julius Young
http://www.boxerlaw.com/attorneys.html

(you can subscribe to the blog via RSS reader; simply click on the RSS buttons at the bottom of the columnr on the lower right below "categories")

Now that the Super Bowl frenzy is spent, back to the world of comp.

If you have been waiting for fireworks from the California courts on the issue of "risk based apportionment", you'll have to wait a bit longer.

The Fitzpatrick case sorta fizzled. Fitzpatrick is the case that had been pending in the California 3rd District Court of Appeal in Sacramento, the same court that in Vaira considered a challenge to age-based apportionment mounted by the ACLU, Impact Fund, and American Association of Retired Persons (AARP).

The facts in Fitzpatrick are straightforward. Dianne Fitzpatrick was a 59 year old teacher at a Placerville Montessori school. Ms. Fitzpatrick was pulled to the floor by a student, injuring her back, hips and knees. An
MRI detected that she had several vertebral fractures. Bone density studies showed that she had osteopenia in her low back. Osteopenia is a condition of decreased bone mass. The court cited Stedman's Medical Dictionary, noting that osteopenia is related to but not precisely synonomous with osteoporosis, a reduction in skeletal tissue that is found frequently in most menopausal women and elderly men.

Examining as defense QME, Dr. Joel Renbaum opined that 65% of
Fitzpatrick's disability should be apportioned to preexisting conditions and 65% to her industrial fall. Renbaum noted that the multilevel defects in Fitzpatrick's spine "clearly pre-existed the work injury".

Dr. Michael Roback saw Ms. Fitzpatrick as QME at her attorney's request. Initially, Roback wrote that her disability was caused entirely by the fall at work. Later, Roback amended his opinion, assessing 90% of her permanent spine disability to the fall at work and 10% as the direct result of preexisting osteopenia.

The trial judge followed Roback's supplemental opinion, finding the cause of her disability to be 90% industrial and 10% non-industrial.
Fitzpatrick appealed (a move which may or may not turn out to have been wise).

The California 3rd District Court of Appeal on 1/29/08 issued an "unpublished decision" (not citable in official reports) in the case, Seabright Insurance Company vs. WCAB and Diane Fitzpatrick. The court remanded the case to the Workers Compensation Appeals Board for more proceedings on apportionment. Why? The stated basis is that Dr. Roback did not adequately address apportionment.

Specifically, the court noted:
"In Dr. Roback's first report, he rejected apportionment, opining that applicant's industrial injury was 100% responsible for her disability. In his second report, he did not give any medical reason for reaching a different conclusion: he merely stated that he had reviewed Escobedo and adjudged that it required apportionment, then threw out the 10
percent figure without analysis. This unexplained and unsupported conclusion, which was the entire basis for the WCAB's determination on this issue, does not constitute substantial evidence. The WCAB's apportionment must therefore be vacated."

The 3rd District Court's opinion totally bypasses the issues raised by Fitzpatrick that had been raised in Vaira. Is apportionment to osteopenia an impermissible age-related apportionment that violates federal and California law? Remember, the 3rd District Court remaned Vaira to the WCAB as well (you can see my post on Vaira by clicking here:
http://www.workerscompzone.com/index.ph ... 203-194656 )

So neither Vaira nor Fitzgerald really answer thorny questions about how much apportionment to underlying"risk factors" is permissible. When does apportionment to an age-related condition become impermissible age discrimination? And when will the courts deal with the thorniest issue of all: what is really meant by "cause" of disability in a situation where the worker had no disability BEFORE her fall?

Look for attempts by Democrats in the legislature to address this problem. At the January 2008 California Applicants Attorneys Convention in Rancho Mirage, Sate Senator Carole Migden promised to carry a bill to address apportionment based on age based conditions.
Migden announced the bil will be titled Senate Bill 1115. I'll be following
it this year.

Stay tuned.

Julius Young
www.boxerlaw.com

(you can see Mr. Young's bio by clicking here:
http://workerscompzone.com/static.php?p ... 6d259248fa )

Wedding crashing.

You've undoubtedly seen The Wedding Crashers. Owen Wilson and Vince Vaughn pay charming rogues who crash weddings hoping to meet women.

Following their own crashing code, they insinuate themselves into a Jewish wedding, telling gullible young women of their exploits with the French Foreign Legion and climbs on Mt. Everest.

Crashing a high-society wedding, the Schopenhauer-quoting Vaughn seduces the sister of the bride. Meanwhile, Wilson chases the apple of the family patriarch's eye. And all the while, the two are fodder for fantasies of the gay son and the exhibitionist mother.

Even lower on the moral totem pole is the Will Farrell funeral crasher. Farrell's character crashes funerals, hoping to meet beautiful widows in their time of need.

Think it doesn't happen in real life? Think again after looking at Klare Richardson-Tunnell's situation.

Richardson-Tunnell, a school teacher for the Lucia Mar Unified School District in San Luis Obispo County, had a back injury at work. As a result, she had a disc replacement surgery in June 2003. Some four months later-in October 2003-Richardson-Tunnell got married while she was on disability leave.

The comp claim was handled by SIPE (the School Insurance Program for Employees), an adjusting agency handling claims for the district. SIPE commissioned Anthony Esparza and Eye-Con Investigations to investigate Richardson-Tunnell.

Esparza crashed the wedding, apparently attending the wedding and the reception at the Victorian Pitkin-Conrow house in Arrroyo Grande which Richardson-Tunnell had rented for her exclusive use.

Esparza may or may not have flirted his way through the wedding and reception, but even if he didn't leave with any phone numbers he did leave with some video.

The next day, he followed up on the honeymoon, using a telephoto lens to shoot pictures of the couple sunbathing on the balcony of their rented hotel lodging.

Richardson-Tunnell sued for damages under various theories-invasion of a constitutional right to privacy, violation of Civil Code 1708.8 (the anti-paparazzi statute), violation of privacy-intrusion, and negligence.

The California 2nd District Court of Appeal (Division Six) ruled that as public entities, SIPE and the school district are immune from a lawsuit for damages under California's Government Code 821.6.

Interestingly, the court notes that SIPE and the school district "do not dispute that Richardson-Tunnell had a right to privacy at her wedding ceremony, reception and honeymoon." But the court was unwilling to say that Civil Code 1708.8 (the anti-paparazzi statute) trumps governmental immunity from damages under Government Code 821.6.

The case-Klare Richardson-Tunnell vs. School Insurance Program for Employees-doesn't speak to the liability of Esparza and Eye-Con. The case was an appeal from the trial court's dismissal of the district and SIPE from the lawsuit. Presumably, the case will proceed to trial against Esparza and Eye-Con. It's not clear what sort of defenses Eye-Con might raise.

Comp wedding crashers beware. If the defendant was a big or small non-governmental employer, there would have been no immunity.

And don't even think about crashing that funeral either.

Stay tuned. I'll be doing some year-end recaps over the next week.

Julius Young
www.boxerlaw.com
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The recent coverage about Vaira, the AARP and ACLU's challenge to application of California's workers' compensation apportionment, failed to highlight that a second case was coming on the heels of Vaira.

The case is Fitzpatrick v. WCAB. Arguments were held last Monday in Sacramento at the 3rd District Court of Appeal.

The claimant in Fitzpatrick is 64 year old schoolteacher Dianne Fitzpatrick. Fitzpatrick was injured when she was pulled to the ground by an unruly pupil in a schoolyard incident.

Clearly the "cause" of the injury was being pulled to the ground. And if she had no disability before being pulled to the ground, in what sense is her disability "caused" by a non-symptomatic underlying condition?

But at the trial level, the judge reduced her permanent disability award by over half by apportioning to osteopenia.

Osteopenia is a bone mineral disorder which is often a precursor to osteoporosis. The disorder is usually found in post-menopausal women and thus is generally related to the aging process. It can also be found in some young high-performance female athletes.

Vaira raised as many questions as it answered. The Vaira court rejected apportionment to age per se but appeared to leave the door open to apportionment to age-caused problems to some extent. In Vaira, the 3rd District remanded the case to the WCAB for additional proceedings and ordered its decision to be "unpublished" and therefore not citable in other legal proceedings.

It's possible that Fitzpatrick-handled by Sacramento applicants' attorney Melissa Brown-could be the more important case of the two.

I'll be watching for the decision, which will probably come in early January 2008.

I hope you'll check back over the holidays. I'll be doing a piece called "The Wedding Crashers."

And I'll be doing a recap of the top events in California workers' comp in 2008 and a separate piece on the top cases in 2008.

Stay tuned.

Julius Young
http://www.boxerlaw.com/verdicts.html
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