An important article surfaced in today's San Diego Union: "Race, Age, Gender Bias Hits Workers Across State".

The article by Deal Calbreath, full of examples of such bias under the current "apportionment" provisions of California's workers' comp law, can be seen by clicking here:
http://www.signonsandiego.com/uniontrib ... 7dean.html

Calbreath notes that next month the National Business Institure has scheduled a Sacramento seminar for workers' comp professionals entitled "How to Discriminate (Apportion) on the Basis of Sex, Age, etc".
It's an ugly trend-doctors deducting for so-called "causes" that in many instances stereotype individuals who had no prior problems but were unlucky enough to get injured at work.

The San Diego Union piece is yet another major newspaper piece-joining a piece in the Sacramento Bee last week-making the case for revision of California law to outlaw apportionment of disability based on age, race, sex, etc.

The folks at the Cal Chamber are going to look pretty heavy handed if they oppose this one. Californians don't like discrimination.

Stay tuned. I'll be covering the Migden bill in detail in coming posts.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS buttons at the bottom of the right-hand scrollbar)

Ever wonder if comp benefits paid out by carriers are only part of the insurance rate equation? What about the return on investments of insurers? Perhaps workers' comp payouts are only a sideshow in the three-ring circus of insurer finances?

Food for thought.

Meanwhile, consider the whopping writeoffs announced by multinational insurer AIG. Yesterday AIG announced losses of almost $5 billion (yep, that's billion)due to the subprime mortgage crisis. AIG stock has fallen by 33% over the past year. This comes on the heels of investigations in a number of states as to AIG's accounting and claims handling practices. Several years ago the axe fell on AIG chairman Hank Greenberg after revelations of questionable accounting practices. Shareholder class action suits followed.

Greenberg was said to be interested in leading a takeover of the New York Times Co. Quite a concept: discredited insurance baron as media mogul. Thankfully, it's a concept that failed to have wings.

AIG is a big player in California workers' comp.In the trenches, AIG is known for a certain inflexibility in California claims handling. It's a company that leaves few cards on the table. When settling cases they like to "structure settlements", hanging on to the money to invest in AIG subsidiaries.

Here's the article on AIG that appeared in the 2/12/08 New York Times:
http://www.nytimes.com/2008/02/12/busin ... nted=print

A Wall Street Journal article today questioned whether AIG is "on a slippery slope":
http://online.wsj.com/article/SB1202869 ... lenews_wsj

California insurance regulators need to keep a watchful eye on this behemoth.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader buttons on the bottom of the right hand scrollbar)

Gung Hai Fat Choy! It's now officially the Year of the Rat.

Today I'm awarding Blue Cross my Year of the Rat award.

Blue Cross (owned by Wellpoint) has been sending letters to its participating doctors requesting the doctors to turn in patients who have conditions not disclosed on applications as preexisting. "Any condition not listed on the application that is discovered to be pre-existing should be reported to Blue Cross immediately" says the letter
(at the bottom of this post I have a link so you can see the actual Blue Cross letter).

It's a new concept: the doctor as spy for the insurer. Forget about doctor-patient relationships and confidentiality. Doctors, if you are in our plan you have an obligation to hold down costs by turning your patient in so that we can cancel their policy.

It's another example of Wellpoint's cherry-picking philosophy. Don't cover people who actually need healthcare. And if they do use coverage, look for reasons to rescind the coverage. Make plan participants nervous about using their coverage.

This Blue Cross letter is a politician's dream. Legislators and Insurance Commissioner Poizner will be lining up to condemn insurer meddling in the doctor-patient relationship.

The big healthcare reform package-AB1X-recently failed. Unlike Kaiser and several other insurers, Blue Cross was a major opponent of the plan . At the moment, in an election year and during a major budget crisis, there's probably not enough legislative energy to revive a big healthcare bill.

But one area that demands legislative action is health insurer conduct. Cherrypicking. Plan recissions. Preexisisting condition exclusions. Doctor-patient confidentiality. A bill prohibiting many of these abuses will be very popular with the public.

Way to go, Blue Cross. Your Year of the Rat Award makes you the poster child for the need for healthcare reform in California.

Here's the link to the Blue Cross letter:
http://www.calendarlive.com/media/acrob ... 508226.pdf

You can read more about this issue by looking at today's Los Angeles Times piece by Lisa Girion:
http://www.latimes.com/business/la-fi-b ... 9662.story

Stay tuned. Next I'll be covering the proposed bill authored by state Senator Carole Migden to outlaw workers' compensation apportionment based on age, gender, sex etc.

You can subscribe to the blog via RSS reader by clicking on one of the buttons at the bottom of the right hand scroll bar.

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

As expected, the failure of Prop 93 (the initiative to change term limits)
has set off changes in Sacramento. Assembly Speaker Fabian Nunez and
California Senate Pro Tem Don Perata are both termed out at the end of this year's legislative session.

Nunez' Louis Vuitton shopping trips and expensive wine purchases made him the poster boy for anti-Prop 93 ads. Despite his backround at the Los Angeles County Federation of Labor, Nunez was unable to head off the 2004 dismantling of worker rights in the SB 899 reform.

The Nunez Speakership is rather thin on pro-labor accomplishments. In the last several weeks we've seen his well intentioned healthcare reform package, AB1X, crushed by the financial complexities of the looming state budget crisis and concerns about inadequate financing of the healthcare scheme. His friend-Los Angeles Mayor Antonio Villaraigosa-may have suffered a major political flameout due to last year's scandal involving dalliance with a political reporter.

Today, after closed-session meetings of Senate Democrats, Perata announced his successor-Sacramento State Senator Darrell Steinberg.
A formal vote will not be held til summer, however.

Steinberg is a savvy legislator with generally progressive values. Known as a problem solver, he has the chance to be a terrific leader in the California Senate. As with Perata, injured workers can at least expect a fair hearing under his leadership.

But what about the Assembly side?

For now it appears that Nunez will remain in his post until August 2008, but the scramble to replace Nunez is already on. Over the next couple of months there'll probably be lots of backroom intrigue as various Assembly Speaker wannabes try to put together enough votes to win the Speakership.

Among the interesting tidbits I heard about today was a rumor (which I can't personally vouch for) that Assemblyman Charles Calderon had been talking to Assembly Republicans about brokering a deal with them and a few Assembly Democrats to capture the Speakership. It takes 41 votes to cut a deal, so Calderon would need about 9 votes from democrats if he had a unanimous Republican caucus ready to back him.

It was only about a week ago that Calderon spoke to the California Applicant Attorneys convention in Rancho Mirage. A Calderon Speakership forged with Assembly Republican votes will please business interests but will not be hospitable to injured worker concerns. Remember the Gang of Five? Calderon had tried to dump Willie Brown during his speakership.

In 2007, Perata exercised "discipline" in the Senate by locking some of the so-called " business Democrats" out of their offices. Among those locked out of his office was Charles Calderon's brother, State Senator Ron Calderon, along with Gloria Negrete Macleod and Lou Correa.

For an analysis of other potential Speaker candidates, check out the
Anthony York piece "The Next Generation" in The Capitol Weekly by clicking here:
http://www.capitolweekly.net/article.ph ... eb4adlcv0h
The short list (in no particular order of seriousness) includes Karen Bass (D-Los Angeles), Alberto Torrico (D-Newark), Joe Coto (D-San Jose), Fiona Ma (D-San Francisco), as well as Mike Feuer (D-Los Angeles), Anthony Portantino (D-Pasadena) , Hector De La Torre (D-South Gate), and Kevin De Leon (Los Angeles). You can find some profiles on these
possible future leaders in today's Sacramento Bee by clicking here:
http://www.sacbee.com/capolitics/story/693793.html

Some of these candidates are allied with Nunez. Some are close to being termed out themselves. Some, but not all, have lots of energy and intellectual juice. So it's a very fluid situation. as the Bee notes, connection with Nunez may or may not turn out to be an advantage.

Unless you follow politics closely, this may be a big yawn. But experience shows that legislation doesn't move in Sacramento without the support of the legislative leadership.

Going back many years, applicant attorneys generally had a sympathetic ear in the legislative leadership. James Mills, David Roberti, Bill Lockyer, Leo McCarthy, Willie Brown, Perata, and-til 2004, John Burton.

Steinberg probably fits. But it's shakier on the Assembly side.

I'll be covering this as further information emerges.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can see Mr. Young's bio by clicking here:
http://www.boxerlaw.com/attorney_bios/julius_young.html )

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 )