Saturday, February 14, 2009, 09:00 AM - Political developmentsThe happy and the sad. It was that kind of week.
It's time for the blog's weekly feature, the week that was.
If you were an older male voter in Mexico City, you were probably happy this week. Mayor Marcelo Ebrard was giving out Viagra to men over 60, hoping to get a lift in upcoming June elections.
http://www.iht.com/articles/2009/02/13/ ... mexico.php
If you were an individual whose healthcare was dropped by Blue Cross, it was probably a happy week. Blue Cross agreed to restore coverage for thousands it had dropped after they submitted bills for expensive health care:
http://www.latimes.com/business/la-fi-b ... 9817.story
But if you were a California state worker, chances were you were sad. While it may be a negotiating gambit, the Governor threatened to send out 20,000 layoff notices unless a deal is brokered in the next few days.
By the time most of you are reading this, we'll probably know whether that deal came to fruition. It appears that it will be larded with long-sought business tax breaks, to the tune of $1 billion in corporate tax relief:
http://www.latimes.com/news/local/la-me ... 7568.story
Also among the sad this week: those civil libertarian activists (such as Glenn Greenwald who writes for Salon.com) who were expecting the Obama administration to reverse course on Bush Administration use of the "state secret" defense in litigation over torture, renditions and warrantless eavesdropping. It's a drama that's been playing out this week in the courtroom of U.S. District Judge Vaughan Walker in San Francisco.
On the Potomac, if you were an Obama supporter you may have been happy. The President prevailed in his stimulus package initiative, albeit with not even one Republican vote in the House.
But many were sad, as the dream of bipartisanship and true "country first" seemed to be elusive. And there were ominous assessments.
Writing in the Financial Times, economist Martin Wolf mused as to whether the Obama presidency has already failed:
http://www.ft.com/cms/s/0/9ebea1b8-f794 ... 07658.html
David Brooks, writing in the New York Times, warned of "The Worst case Scenario":
http://www.nytimes.com/2009/02/13/opini ... .html?_r=3
Here in our California workers comp world, who was happy, and who was sad?
The happy this week were employers and carriers, who notched a big win with the California First District Court of Appeal in the Benson case
(see my post earlier this week).
The sad: applicant attorneys, who now see the possibility (unless other courts hold to the contrary) that some workers will get lower awards and settlements as the disability percentages (and resulting money) for some permanent disabilities are split between multiple dates of injury rather than rated altogether.
Also among the sad this past week: judges and WCAB staff, who told me that EAMS was "down for several days", meaning that the new paperless computer system wasn't functioning and could not be accessed. How often does that happen at Amazon.com or at Apple.com?
Businesses can't function when their system is down for several days.
But hey, it's the state.
In upcoming posts I'll be sharing some further thoughts on Benson and some ideas on Almaraz, a recent significant case.
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Wednesday, February 11, 2009, 09:41 PM - Political developmentsLabor standards violations have been rampant in California over the past
Scofflaw employers fail to observe labor laws. And many of these either misclassify their employees or don't carry workers comp insurance.
It's a problem that costs the California comp system billions, raising system costs for all (see the link at the bottom of this piece to a CHSWC study by UC Berkeley faculty on this issue).
Over the last few years, every week seems to bring a press release of some labor standards enforcement bust, usually in low wage service industries.
That's why it was heartening to see some Los Angeles carwash owners charged with criminal violations this week. Many of these businesses fail to observe basic laws covering meal and rest breaks, overtime pay, and minimum wages.
Here's a link to the L.A. Times story:
http://latimesblogs.latimes.com/lanow/2 ... s-cit.html
Cracking down on these folks is a two-fer. In addition to helping create better working conditions, it increases the pressure to observe laws requiring workers' comp coverage.
These types of businesses prey on immigrants desperate for work.
It's not surprising that employer abuse of the comp system is most prevalent in the types of industries that hire lots of immigrant labor.
Car-washes. Landscaping. Laundries. Garment-making. Janitorial.
Restaurants. Agricultural jobs.
Until the nation resolves its tug of war over immigration policy, this sort of problem will remain endemic.
Immigration policy is now-along with taxes-one of the third rail issues in politics. Politicians can lose their career by getting on the wrong side of the issue.
The current financial meltdown brings another dimension to the immigration debate. Increased focus is being placed on the financial burdens of immigrant populations. Those populations may soon find themselves denied services for financial reasons.
Counties, with strapped budgets, are threatening to halt services to the undocumented:
http://www.sacbee.com/ourregion/story/1 ... Our+Region
George Skelton, writing in the Los Angeles Times, examines both sides of the issue. Skelton notes that there are budget consequences:
http://www.latimes.com/news/la-me-cap2- ... ?track=rss
Perhaps we'll see action later this year on a national immigration policy. Almost certainly that would have to combine a path to amnesty for those already here but with increased border enforcement and clear rules for dealing with future illegal entrants.
As with labor law reform, the Democratic margin of control of Congress is too thin and too filibuster-vulnerable to expect comprehensive reform that is not brokered by moderate Republicans and a handful of Blue Dog Democrats.
But for now we have a segment of the labor force that wants to work-and works hard-but is abused.
Cracking down with criminal charges may be one way to discourage systemic abuse, particularly where it seems to be so widespread as in the carwash business.
Congratulations to all the labor activists who are working on bringing the scofflaws to justice.
Here's the link to the CHSWC study on employer fraud in the California workers' comp system:
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Tuesday, February 10, 2009, 01:48 PM - Political developmentsThe California First District Court of Appeal released its decision today in Benson v. WCAB (a link to a pdf of the decision is at the bottom of this post).
Benson is a loss for disabled workers and a big win for employers and carriers.
The Court of Appeal has affirmed the decision of the California Workers' Compensation Appeals Board. The decades old "Wilkinson doctrine" is a casualty of SB 899.
Benson requires that permanent disability attributable to individual dates of injury be rated separately, even if the injuries became stationary at the same time. Wilkinson had allowed such injuries to be rated together, recognizing the synergistic effect successive injuries sometimes have.
But the issue is still in play, for a while at least. Why?
The California Court of Appeal, 2nd District, currently has 2 cases pending on the same issue (Forzetting and Vilkitis). And there is always a slim possiblility that the California Supreme Court could step in on this one.
Benson was a unanimous Court of Appeal decison, however, following a WCAB en banc decision that featured only one dissent (Commissioner Caplane). This one looks like an uphill battle for the applicant's bar.
Here is the link to the Benson opinion:
http://www.courtinfo.ca.gov/opinions/do ... 120462.PDF
Meanwhile, this afternoon I see that the Governor may issue layoffs to 20,000 state employees unless there is promp resolution of the budget. This could have major impact on WCAB operations.
Tuesday, February 10, 2009, 08:41 AM - Political developmentsIf you've been reading the blog for some time, you know that I'm monitoring healthcare reform issues. Since so many disabled workers lose their health coverage, comprehensive health reform is a paramount concern for many.
Washington is consumed with negotiations over the "stimulus". The House and Senate versions are quite different. California comes out far better under the House version. Many folks in Sacramento have been looking to Washington to solve a big chunk of the state's budget problems. No one wants to make the hard decisions to bring California's budget in balance.
It's still unclear whether Sacramento Democrats will be forced to make labor law changes as part of a budget compromise. And since the negotiations are in secret, one can only hope that workers' comp does not get rolled into the Sacramento budget talks.
But back to Capitol Hill.
Are there stealth healthcare reform provisions in the stimulus bill?
That's the charge by Betsy McCaughey of the Hudson Institute (a conservative New York think tank), writing on the Bloomberg site. McCaughey was a vociferous opponent of Bill Clinton's healthcare reform, and has been criticized for mis-characterizations before. You may want to take some of her writing with a grain of salt.
But the following is a piece that is ricocheting around the internet this morning, charging that the stimulus is setting up policy changes on healthcare reform:
http://www.bloomberg.com/apps/news?pid= ... fDxfbwhzs#
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Sunday, February 8, 2009, 09:38 PM - Understanding the CA WC systemCalifornia workers' comp has recently experienced an earthquake-type event, the Almaraz decision.
Very few observers saw this coming. What is it, and what's the fuss?
Here's a synopsis that may be helpful for injured workers and individuals interested in workers' comp who may not have been following developments in the law closely.
Almaraz, the California Workers Compensation Appeals Board en banc decision unveiled in February 2009, may be the most significant workers' comp decision in several years (a link to the consolidated decision in Almaraz v. Environmental Recovery Services and SCIF and Joyce Guzman vs. Milpitas Unified School District and Keenan & Associates) is available at the bottom of this post.
It's a 56 page decision signed by all WCAB commissioners. In past cases the California Court of Appeal and Supreme Court have been very deferential to the expertise of the WCAB. There may be appeals filed, although the decisions in both Almaraz and Guzman return those cases to the trial level for more development of the evidentiary record.
Almaraz (it's actually Almaraz and Guzman, but I'll call it Almaraz for simplicity's sake) deals with the issue of whether and how the American Medical Association Guides 5th edition, referenced in Labor Code 4660 and in the 2005 Permanent Disability Rating Schedule, can be rebutted.
In Almaraz the WCAB makes the following important findings:
-the AMA Guides portion of the 2005 schedule is rebuttable and not conclusive
-Labor Code 4660 requires consideration of the AMA Guides but does not make the AMA Guides determinative in assessing an injured employee's impairment
-the AMA Guides does not measure work impairment and indeed excludes work from the activities of daily living considered
-the AMA Guides recognize that it is merely a first step for measuring work impairment; factors outside the guides may be considered, including the impact of the injury on the employee's ability to perform work activities
-the AMA Guides allow an evaluating physician, through the exercise of judgment, to modify an impairment rating
-the law of many other states recognize that other factors can be considered in addition to the guides
Having found that an impairment rating under the AMA Guides may be rebutted, the unanimous WCAB turned to the question of what standards are to be used in determining whether there has been rebuttal.
"We conclude that an impairment rating strictly based on the AMA Guides is rebutted by showing that such an impairment rating would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability."
In pushing for use of the AMA Guides in California in 2004, the employer and insurance carrier community hoped that use of the AMA guides would result in more standardization of ratings and less subjectivity in the rating system.
The goal of most of the 2004 reformers was to base permanent disability ratings on a system founded on "objective" measurable impairment. This was seen as necessary to tame a system they claimed was out of control and was an element of a comprehensive reform to lower comp costs.
Pre-2005 injuries that were permanent and stationary before 1.1.05 or that resulted in the "existence of permanent disability" before 1.1.05 are rated under the pre-AMA system. The pre-AMA system based many ratings on work restriction categories, some of which were called "plateau ratings". For example, a limitation of no very heavy lifting (which had a specific definition under the "old" rating schedule) carried a 10% rating (which was then either increased or decreased by occupational and age factors). Under the former system ratings were sometimes affected by the doctor's assessment of the degree and frequency of subjective complaints.
The 2004 employer/carrier reform group wanted no room in the system for work preclusions or subjective assessment.
Reference to the AMA guides (5th edition) was inserted in SB 899.
It's a big green book, hundreds of pages long.
Of course, the reformers could have chosen other versions of the AMA guides. A number of states use versions other than the 5th edition.
Since 2004, the AMA has unveiled the 6th edition of the Guides; so far the 6th edition seems to be getting a tepid response in most states.
The 5th edition of the Guides assigns "Whole Person Impairment" figures to conditions which affect organs and body parts from head to toe.
But the Guides are not evidence based. "Whole Person Impairment" percentages under the Guides are not based on studies of work disability nor are they based on other scientific studies. The WPI figures of the Guides are ultimately every bit as arbitrary as the "plateau ratings" that were used for many conditions before SB 899.
That's why it's amusing but maddening to see some self-serving lawyers and doctors fulminating about "correct impairment ratings" under the Guides. Some of these folks now run cottage industries-as seminar leaders and as consultants- that seek to preserve "correct impairment ratings".
They are big proponents of a kind of "cookie cutter" justice.
With Almaraz, their franchise just took a huge hit.
But there's another big problem with the Guides. The Guides make it clear that they are NOT measuring work impairment, but rather impairment of other activities of daily living.
A rigid application of the Guides in some circumstances has resulted in workers being assessed with 0% "Whole Person Impairment" but with work restrictions which caused them to lose their job.
The cottage industry consultants (some of who helped author the Guides) are unable to give a satisfactory intellectual answer to that conundrum. How can a person be assigned work restrictions which preclude return to work (or which trigger the interactive process for reasonable accomodation under FEHA, the California Fair Employment
and Housing Act), and yet be assigned no AMA "Whole Person Impairment"?
This never passed the "smell test".
Almaraz basically means that a rating will have to pass the smell test.
Under Almaraz, the rating must not be "inequitable, disproportionate and not a fair and accurate measure of the employee's permanent disability".
Fairness, equity, proportionality, accuracy.
The pendulum need not swing back to excesses of the prior system. But it appears the pendulum is headed back to a system which allows greater focus on how an injury affects the individual worker.
Stay tuned. In future posts I'll be looking at what sorts of evidence may be relevant under Almaraz.
Here is the link to Almaraz:
http://www.dir.ca.gov/wcab/EnBancdecisi ... uzmanJ.pdf
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