Monday, February 2, 2009, 10:39 PMIn life, there's good shredding. Eddie Van Halen on guitar. Some of the licks from The Scorpions or one of your favorite metal bands.
And there's bad shredding. As in when the societal "safety net" starts to weaken.
In California the latter seems to be happening. We live in a time of "good banks" and "bad banks" as our leaders search for a solution to the vortex we've entered.
Even the prominent characters are like something out of a Batman movie.
Dr. Doom (NYU economist Nouriel Roubini) tells us we're early in the cycle.
The "Grave Dancer", investor Sam Zell, buys California's largest newspaper, the LA Times. The New York Times sells a huge stake to Mexican billionaire "Carlos Slim". Making off with billions is Mr. Madoff.
The Treasury Department has been run by alumni of Goldman Sachs; guys who pocketed fistfuls of leveraged loot on their way to a regulatory perch in the public sector.
"Turd blossom" (Karl Rove) is no longer at the White House on Pennsylvania Avenue. "Sabertooth" (Bush's nickname for Congressman Barney Frank) has been putting together the TARP and "stimulus" package.
I'm not making this stuff up. It's the stuff of a "Sin City" graphic novel.
Meanwhile, that safety net is fraying. Here in California the unemployment insurance program is on life support.
Today Marc Lifsher did a good piece in the L.A. Times on the disarray at the Unemployment Insurance Appeals Board, where backlogs and personnel problems are causing great turmoil:
http://www.latimes.com/business/la-fi-u ... ?track=rss
It's a great concern to disabled workers, many of whom depend on the unemployment system at some point after their injuries.
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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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