Friday, February 20, 2009, 11:06 AM - Understanding the CA WC systemThree.
Workerscompzone recently celebrated its third birthday.
Doing the blog has been a fun ride for this Tar Heel turned Californian.
In 2007, when I started blogging, I knew that California already had a number of excellent subscriber-based resources on workers' comp. For years the California Workers Comp Reporter (CWCR) has published a distinguished monthly analysis of legal and regulatory developments. The Appeals Board Reporter has also been an excellent source of information for workers comp professionals.
Later,workcompcentral.com joined the fray, giving the comp community daily access to the latest state and national developments. LexisNexis created its Workers' Compensation Law Center (in 2008 I was named by them as one of Top 25 workers' comp blogs in the USA).
And the Workers Comp Executive has been a terrific source of information, focusing on developments that affect the industry. No list would be complete without mentioning the Executive's columnist "Publius" , which was a major influence in my decision to start the blog in the first place.
But I wanted to do something a little different from the others.
When I started this I had several goals:
-contemporaneous commentary about important developments in California workers' comp law
-documenting the realities of comp law practice from the trenches
-giving voice to the frustrations and concerns of many disabled workers
-relating the concerns held by various attorneys and judges in the "comp community"
-monitoring the comp system studies done by various state agencies and stakeholder think tanks
-following key developments in California's political process which have implications for workers comp
As I got deeper into the blogging process I found myself occasionally venturing into related issues that affect California"s disabled employees. Unions. Healthcare reform. Issues surrounding the UI/SDI safety net. FEHA. Immigration and employment. Sacramento shenanigans. General cultural madness.
It's been very helpful to have an excellent set of colleagues on my side at Boxer & Gerson. Unlike most workers' comp applicant firms, we have
an employment law section and a civil trial lawyer section, both of which have been great resources for the blog. Thanks to them for putting up with me adding the blog to my regular caseload.
The past few years have been tough for many disabled workers, but from the standpoint of the law itself, it's been an exciting time. Creative lawyering is in abundance, and the law is in flux in many aspects even five years after the 2004 SB 899 reforms.
I've tried to take the big view, looking at what works and what doesn't work under the system. Having practiced in the system for about 30 years, I've pretty much seen the pendulum swinging in every direction.
Reforms and re-reforms. Reforms which sometimes had unforseen and unintended consequences.
Periods when providers and lien claimants went wild.
Periods when employers felt they had little voice. Periods when workers felt they had little voice.
Quiet periods. Periods where the system was like the Wild West.
Periods when insurance carriers were bleeding money. Periods when they were rolling in dough like pigs at the trough.
What about the blog's future?
I look forward to giving you more commentary as time goes on. If I don't challenge you-and perhaps even infuriate you from time to time-then I'm not doing my job. If you're looking for a blog for the politically correct, this is not the space for you.
Writers do best when they write about what truly interests them.
As I've done this for awhile, I've realized I enjoy doing it most when I can sometimes put comp in the big picture context of the economy and the culture. Two years ago, who, other than NYU's Doctor Doom (Nouriel Roubini), would have imagined the depth of the economic meltdown we are now seeing? I happened to be visiting New York and Wall Street last September when A.I.G. was melting down. Seeing that focuses the mind.
From time to time I'll post from abroad. My wife owns a business supplying Asian paper mills with recycled fiber and pulp from North America and Western European suppliers. Carrying her bags on her business trips gives me a chance to see the world of international trade up close. I'll try to continue giving periodic perspectives from those places.
I get a lot of e-mail from workers looking for advice about their particular situations. Unfortunately, I can't practice law via e mail through the blog.
But if you are a "comp community" person or a system stakeholder, I welcome your tips (confidential if you choose) , gossip, reactions, rebuttals, corrections, or whatever. Is there something you think needs to be addressed or exposed? My e mail for blog purposes is email@example.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right below "Most Recent Entries")
Wednesday, February 18, 2009, 04:42 PM - Political developmentsWorkers' comp generates a lot of public cynicism.
Studies showing billions of dollars lost to employer premium and classification fraud fall mostly on deaf ears.
Taxpayer TARP bailouts for the corporate parents of California comp insurers are in public focus, but not tied back to the comp system in the public's mind.
But a story like that of the octuplets' mom and her workers' comp injury has "great legs", as they say. Nadya Suleman (who collected over six figures in comp benefits) may have a legitimate workers' comp case, but if you ask the average person on the street whether her claim is legit or not, you'd probably get quite an earful.
That may not be fair to Ms. Suleman, but the public wonders.
The cynicism is fueled by articles such as the following, which is found on Time Magazine's website. It's an op-ed piece by Dr. Scott Haig, who notes that outcomes-and motivation-in workers' comp sometimes seems different than for non-industrial patients.
Haig's piece paints injured workers with a broad brush. Haig fails to note that many workers fall far behind monetarily while they are off work. Some succumb to an economic and social tailspin they can never recover from. And if those same workers were hurt due to the negligence or unsafe workplace of an employer, they are barred from pursuing a civil damages lawsuit.
But here's the link to Haig's argument:
http://www.time.com/time/printout/0,881 ... 98,00.html
Other items worth mentioning:
The California 2nd District Court of Appeal (6th Division) has now scheduled oral argument on March 11, 2009 in Vilkitis v. WCAB. Vilkitis involves issues similar to Benson, i.e. did the 2004 reform act, SB 899. obliterate the decades old Wilkinson doctrine that allowed some multiple injury dates to be rated for permanent disability as one? The docket for the case is here:
http://appellatecases.courtinfo.ca.gov/ ... no=B209235
In a post last week I noted that I'd been told by various WCAB staff that EAMS was "down" for an extensive period. I've now been contacted by Peter Melton, the DWC's public information officer for EAMS (for newbies, that's the new WCAB computer system). I'll share his perspective with you.
Melton says that EAMS experienced sporadic outages for a day and a half, starting February 9. Some users had trouble logging on and performing tasks. Melton's e-mail tells me that the problems were sporadic and did not affect all sites. ( It's not clear to me how many sites were affected)
Some users were apparently able to use the system during the two days and Melton notes that it's incorrect to say the whole system was down for two days. He indicates that "this was the first major technical challenge with the system since it went live last August".
Also, Melton observed that "It's important to note that EAMS did not crash or lose any data".
That's good news.
Meanwhile, all eyes on Sacramento. What will eventual resolution of the budget mean for the comp community? To follow the budget high drama in Sacramento, tune in to the twitter from KQED's John Myers:
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Monday, February 16, 2009, 10:20 AM - Medical treatment under WCHere in California we have some experience with "evidence based medicine".
After all, that was the premise for adoption of medical treatment standards in the California workers' comp system. The initial standards adopted were the "ACOEM guidelines". Those are still in effect, although the state has moved to adopt "evidence based guidelines" from other sources as well, including some from the Work Loss Data Institute's ODG treatment guidelines.
A recent sideline to the debate over the $787 billion federal stimulus package has been a debate over evidence based medicine and "comparative effectiveness research". The debate is a precursor to likely struggles over national healthcare reform.
Included in the stimulus is $1.1 billion for research to compare effectiveness of treatments. The bill provides for a 15 person committee to co-ordinate and advise on effectiveness research.
This is already being done, though to a lesser extent. Some efforts are now provided by the National Institutes of Health and the Agency for Healthcare Research and Quality (see link at the bottom of this post).
In California, ACOEM is all too frequently used to deny the small stuff.
A back brace, pool therapy, a home traction device. Some of the treatment modalities run through utilization review under ACOEM guidelines cost less than the cost of the review. That's stupid.
But there are bigger questions on a national scale. Do Americans receive too much surgery? Some advanced European countries do far less surgery for some common orthopaedic conditions.
Is that a good thing or a bad thing?
If your loved one has prostate cancer, it's hard to feel comfortable with a strategy of "watchful waiting". But as a rule, is that best?
The pendulum has swung in the last several decades towards much more aggressive "pain management". But how effective are some of the pain management devices? And how cost-effective?
Effective and cost-effective may not always be the same thing.
Are there instances in which older medications in the pharmaceutical armamentarium are just as effective as newer, costly medications?
Our medical system currently is consuming about 16% of GDP. And that's before most of the baby boomers have retired and start breaking down. Can we get more bang for the buck?
Our biggest auto company, General Motors, is said to be a healthcare company (for retirees) that just happens to make autos. How to deal with this burden?
These are not idle questions to be asking.
Yet, there was great concern in many quarters over the research provisions in the stimulus. Rush Limbaugh and a number of talk radio commentators charged that cost-effectiveness research was a Trojan Horse for healthcare rationing that will come with any Obama comprehensive health reform plan.
Centrist Democrats such as Rep. Susan Davis (from San Diego) and Rep. Ellen Taucher (from Walnut Creek) wrote to Speaker Pelosi, expressing concern that the research not be focused on denying critical care just because of cost.
Here's the website of the Galen Institute, a "free-market" healthcare advocacy group:
As Steve Pearlstein notes in this piece in the Washington Post, this dustup over healthcare planning is the opening salvo over the battle for comprehensive healthcare reform:
http://www.washingtonpost.com/wp-dyn/co ... 27_pf.html
The site of the U.S. Agency for Healthcare Research and Quality is here:
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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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