Thursday, February 24, 2011, 09:52 PM - Political developmentsThe suspense over the Ogilvie case continues to mount.
The California Court of Appeals 1st District has now set a date for oral argument, to be held on April 13, 2011 at 9 am in San Francisco.
The 1st Appellate District granted the writs filed in the case but then there was no activity til the fall of 2010, when the Appellate court requested supplemental briefing.
Ogilvie deals with the issue of whether and how the permanent disability rating schedule can be rebutted. In the Ogilvie I and Ogilvie II en banc decisions the WCAB adopted a mathematical formula that may be used in some cases to challenge the "adjustment rating factor" in the 2005 permanent disability rating schedule.
In an earlier case, the Boughner case, the WCAB had rejected an attack on the 2005 PDRS itself.
Ogilvie arguments typically arise where a worker has significant wage losses over a period of three years or more after an injury.
While the WCAB's Ogilvie decision envisioned a relatively simple mathematical formula to determine proportional wage losses by comparing them with wages of similarly situated employees, post-Ogilvie cases have clarified that not all wage losses can be taken at face value under Ogilvie.
In later cases such as Shini, the WCAB has indicated that factors enumerated in an old case called "Montana" may need to be considered.
Montana factors include the state of the labor market, education, willingness and opportunities to work, motivation, etc.
In some cases this "Montana" analysis modifies or undermines undermines the simplicity of the mathematical Ogilvie formula.
Recently the California Applicants Attorneys Association sent a letter to the 1st District, asking that the court schedule oral arguments. CAAA has noted the statewide importance of a determination in the case.
Ogilvie workups and trials are common at some boards. At others the issue is being deferred or is much less common.
Whatever the outcome at the 1st District, it's quite possible that the issue will wind up at the California Supreme Court someday. The issue will probably surface in other districts; indeed, it may arise in a case pending at Sacramento's 3rd DCA.
Of course the issue could be made moot by an administrative or legislative revision of the 2005 PDRS, which was mandated for 2010 but ignored by the Schwarzenegger DWC.
With Sacramento in turmoil over the budget and a new AD of the DWC still not named, it's unlikely we'll see anything happening on these issues before the 1st District speaks in Ogilvie.
Here is a link to a pdf of the Ogilvie decision:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf
An excellent article by Robert Rassp on post-Ogilvie cases can be found here:
http://law.lexisnexis.com/practiceareas ... and-Others
Wednesday, February 23, 2011, 09:39 PM - Political developmentsIn a sad coda to the end of this year's football season, there was word last week of the Miami area suicide of Dave Duerson, a four time Pro-Bowl player and holder of Super Bowl rings with the New York Giants and Chicago Bears.
Press reports claim that Duerson's family has donated his brain for medical research on the effects of concussions in football.
Chris Nowinski at the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine has been quoted by The Associated Press as being contacted by a representative of the NFL Players Association and by Duerson's family. Apparently the brain is being donated to the Boston University research center.
This is a sad story and we don't know all the facts, though there have been reports that Duerson had suffered a series of financial setbacks.
But the high profile nature of the Duerson case sheds further spotlight on the attention being given to the cognitive effects of head trauma in sport. If autopsy studies or further scientific analysis show significant concussive effects in Duerson's brain, this will increase calls for action to deal with concussions on the gridiron.
It's notable that even Super Bowl MVP Aaron Rodgers has suffered a series of concussions.
Was it always this way? The recent death of University of San Francisco and LA Rams star Ollie Matson makes me wonder. Press reports have said that Matson, who died at age 80 in Los Angeles, had dementia for as much as four years. Whether this was non-traumatic Alzheimer's or some other form of dementia, or possibly related to concussive effects of years on the gridiron is unknown.
That's rank speculation , but as science in this area advances we may someday be able to connect the dots.
Matson in his prime was one of the fastest and most exciting players who ever put on a uniform. The 1959 Rams were a losing team, but for this young boy from North Carolina, Matson and his Rams squad which included Jon Arnett, Les Richter, Jack Pardee, Lamar Lundy, Billy Wade and Frank Ryan were heroes even in defeat.
Matson's passing, and that of Duerson, is noted with sadness.
Sunday, February 20, 2011, 09:01 AM - Political developmentsSilly you.
You thought that after the Packers won the Superbowl that you'd only be thinking of Wisconsin when you pass the supermarket cheese cooler.
You were so wrong. Little did you know that a battle that could shape the future of the labor movement (and American politics) would be playing out among those cheeseheads so soon after the Super Bowl.
The drama unfolding as large labor rallies clash with tea party rallies at the Wisconsin capitol in Madison will likely be replicated in statehouses across the land. At stake is not just whether public employees have the right to collective bargaining (a right they have in California but don't have in many other states) but also whether public employee unions can automatically collect dues from members. Oh, and whether public pension reductions are negotiated or just imposed via legislative fiat.
It's an ugly struggle because it pits union against union (certain public safety unions are exempted from Governor Scott Walker's proposal).
And even some conservative, libertarian oriented pundits have mused why we should celebrate the government telling workers that they can not organize and negotiate.
Here in the Golden State, why should we care?
Even with the budget California budget chasm being as dire as it is, with Democrats totally controlling the California statehouse we are not likely to see the same dynamic. Teachers and other public employees are a powerful political force in California and are unlikely to be attacked by Governor Brown.
But the aftermath of the Wisconsin struggle will likely shape the national clout of labor for years to come.
Wisconsin has often been a bellwether state.
That includes workers' compensation.
Wisconsin enacted the first state workers' compensation system on May 3, 1911, beating California to the punch. A history of that effort in Wisconsin can be found here:
http://www.wisconsinhistory.org/wlhba/a ... y=&cy=
At that time Wisconsin was fertile ground for the progressive movement. Robert LaFollette, Wisconsin's governor from 1901 to 1906, was a reformer who spoke out against corporate excesses.
LaFollette's causes included not only creation of a workers' comp system (the Wisconsin act was signed by his successor), but also minimum wage laws, open primaries, women's right to vote, progressive taxation, non-partisan elections, and regulation of railroad rates.
Along with Theodore Roosevelt, muckrakers such as Upton Sinclair, and other progressive politicians, Wisconsin's LaFollette cleared a path for the enactment of state workers' comp systems. You can download LaFollette's autobiography for free on Google, one of the texts Google has digitized:
http://books.google.com/books?id=IOG8_6 ... mp;f=false
In 1911, California passed the Roseberry Act, establishing a system of voluntary coverage. In 1913, the Boynton Act established a system of mandatory workers' comp coverage. In a future column, I'll take a look back at Hiram Johnson and those early California progressives who brought workers' comp to California.
Those of us in the comp community owe some gratitude to those early Wisconsin reformers. They recognized the need to provide institutions to guard the social welfare of those most vulnerable and disadvantaged, to buffer the hard edges of the free market.
And we should have more than passing interest in how the coming days play out for the teachers and other public employees in Wisconsin.
Monday, February 14, 2011, 08:56 PM - Understanding the CA WC systemThe comp world is a talented place.
That dour looking attorney down the hall may be an accomplished poet or an Elvis-impersonator in his spare time. Who knew?
In workerscompzone's ongoing mission to shed light on the dark recesses of the comp system's talent pool, today we feature another musican in our "Comp's Got Talent" series.
Today the spotlight of fame shines on the Golden Gate Gypsy Orchestra, which produced "The Traveling Jewish Wedding":
http://www.mp3.com/artist/golden-gate-g ... a/summary/
Their album is available on Amazon:
http://www.amazon.com/The-Golden-Gate-G ... B000APVIYM
And on Rhapsody:
http://www.rhapsody.com/golden-gate-gyp ... sh-wedding
Featuring several Bay Area workers' comp treating physicians, Dr. Robert
Blum noted to me that they are "happy to play at your next affair".
Blum, a neurosurgeon who is frequently used as an AME, played bass, accordion, piano and synthesizer bass on "The Traveling Jewish Wedding", which was produced by Mickey Hart, former Grateful Dead drummer.
Among the orchestra joining Blum was opthamologist Douglas Gerstein (on guitar and maracas) and orthopaedic surgeon Aubrey Swartz on drums and vocals, both well known in Bay Area workers' comp circles.
The orchestra features instruments such as balalaika, dumbek, bouzouki, and lute. Many of the participants in the venture came out of the Marin County Jewish community.
An offshoot of the orchestra is now available to do Jewish weddings in Kona, Hawaii:
So you aficiandos of klezmer music, take note....it's here under the Big Tent we call the comp community.
Wednesday, February 9, 2011, 10:05 PM - Political developmentsThere was word this week that DWC Acting Administrator Carrie Nevans passed away last weekend.
Nevans guided the California Division of Workers' Compensation through some turbulent years. The 2003 and 2004 legislative reforms mandated extensive regulatory changes.
Under Nevans' leadership the DWC undertook a huge regulatory burden.
In 2004, regs implemented included claim form regulations, lien filing fee regulations, medical fee schedule regs and spinal second opinion regulations.
In 2005 there were regs on independent medical review, medical provider networks, return to work, and predesignation of personal physician. And in 2005 the DWC adopted a controversial schedule for rating permanent disabilities.
2006 saw adoption of medical-legal fee schedule regs and workers' compensation information system regs.
In 2007 there were regulations on the MTUS (medical treatment utilization schedule), administrative penalties, and physician and pharmacy fee schedules.
Adopted in 2008 were regs on benefit notices, the EAMS filing system and ethical standards for workers' compensation judges.
During 2009, audit regulations were adopted as well as regs on HCOs (health care organizations), more MTUS regs, and QME regs.
In 2010 there were ambulance fee schedule regulations, Medical provider network and other notice regs, and workers' compensation information system (WCIS) regs.
At the time of Nevans' death, a number of regulatory efforts were in process, including ones dealing with medical payments to doctors, electronic medical billing, hospital inpatient fees, ambulatory surgery center fees, and more. Many of these are part of the Schwarzenegger administration's 12 point plan to control medical cost escalation through regulatory action.
Some of the regulations adopted by Nevans are likely to be with us for years. Others are likely candidates for further revision by the Brown Administration, or fodder for future legislative deals.
But the sheer magnitude of the items accomplished under Nevans' tenure mark her leadership as one of the most significant in DWC history.
In her role Nevans caught quite a bit of flak from applicant attorneys, injured workers' and some in the medical provider community.
Yet Nevans was widely seen as attempting to implement the complex requirements of the law with fairness and competence. That's not easy, given the fact that workers' compensation involves the intersection of significant divergent monetary interests and stakeholders with conflicting agendas.
Eventually Nevans unveiled a draft revision of the 2005 PDRS, but it was never adopted. Eventually we'll have a clearer record of the internal history of the DWC during that time and its relationship to decision makers up the food chain, including some of the Schwarzenegger confidantes in "the horseshoe" at the Capitol.
I've been told off the record that Nevans pushed for changes in the schedule but was not allowed to implement those changes.
I never knew Nevans personally. My impression was that she sought to stay out of the limelight as much as possible.
But I admired her ability to run the division, particularly given that she was apparently dealing with her own health challenges during some of the time.
If there was a flag at the DWC to be flown, it would be at half mast this week as her untimely demise is noted.