Wednesday, February 4, 2009, 11:18 PM - Understanding the CA WC systemThe comp community was all a-twitter today.
The big buzz? Yesterday's en banc decisions in Olgilvie and Almaraz and Guzman (see yesterday's post)
A sample of comments from sources (applicant attorneys, defense attorneys and judges) I spoke with today:
...."Courageous"....."A slippery slope"...."What took them so long?"......"Finally, the pompous AMA police are put in their place"......"FEC is rebuttable, but is it worth the effort?"......"Could some of this be used as a sword against applicants?"......"Every case in process needs to be rethought"......."How do I explain the various ramifications of this to my clients?"......"Are we back to where we started a few years ago?"...."This will make the lawyers happy"....It "blows open the doors".....
"All that crap about so-called correct impairment ratings; the emperor had no clothes"....."We will see a lot more use of subrosa films to attack medical formulations of impairment"......."This will be a big bargaining chip in future legislative and regulatory negotiations"....""This was under the radar as people focused on Boughner and Benson"...."Ogilvie is too confusing to be useful"...."Two Court of Appeals Districts could wind up with Almaraz and Guzman; that's kind of wicked"......"Now we have a hot topic for all of the conventions and continuing ed providers"....."We'll see very early on which doctors will insist on applying the AMA very mechanically and which docs will take a more expansive approach to incorporating more detailed descriptions of ratable impairment"...."Functional capacity evaluations are back".....
In the next couple of posts I'll analyze these in more depth.
Tuesday, February 3, 2009, 09:36 PM - Understanding the CA WC systemFor some time I've been expecting that the WCAB would issue a decision clarifying its position on rebutting the 2005 permanent disability rating schedule.
In Scott Boughner vs. CompUSA the WCAB had upheld the validity of the 2005 PD schedule (Boughner's counsel has requested the Court of Appeal review that decision but there is no action yet on the request for writ of review).
The lesson of the Costa I, Costa II and Costa III cases has been that the WCAB will allow vocational or labor market expert testimony in an attempt to rebut the schedule. But so far, every panel decision I have seen has rejected the substance of the Costa testimony. In some cases the expert's efforts were not based on substantial evidence. In others the methodology was questioned.
Today the WCAB clarified its position, issuing two en banc decisions,
Wanda Ogilvie vs. City and County of San Francisco, and a separate decision in two cases, Mario Almaraz vs. Environmental Recovery Services and SCIF and Joyce Guzman vs. Milpitas Unified School District and Keenan and Associates.
In tandem, the decisions now provide a "road map" as to the standard for rebutting the AMA guides and the 2005 PDRS.
Note: one or both sides could seek a writ of review with the Court of Appeal. The Court of Appeal has discretion as to whether to hear such a case. Therefore, the following en banc decision are NOT necessarily the last word.
But no doubt about it. These are critical cases for the California workers' comp system.
Here is a link to a pdf of Ogilvie:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ilvieW.pdf
Here's the pdf of Almaraz and Guzman:
http://www.dir.ca.gov/wcab/EnBancdecisi ... uzmanJ.pdf
In my next post I'll comment on Ogilvie and Almaraz.
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Tuesday, February 3, 2009, 08:55 AM - Political developmentsMore on shredding of the "safety net":
Cash strapped counties are having problems meeting their safety net obligations......Backlogs in the welfare system that may affect some who run out of unemployment, state disability or workers' comp and are unable to find employment in a declining economy.......
Here's the Contra Costa Times piece:
http://www.contracostatimes.com/politic ... source=rss
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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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