Controversy has been brewing at DOSH, the California Department of Industrial Relations, Division of Occupational Safety and Health.

In apparent reaction to a former employee's unauthorized compensation for trainings in occupational safety and health while employed at DOSH,
DOSH recently launched an inquiry into activities of DOSH employees.
The inquiry required employees to fill out a questionaire on their speech activities.

This caused a widespread negative reaction among DOSH employees, who saw the inquiry as overbroad and intrusive. I've been told that some DOSH employees likened the inquiry to the Stasi, the East German Communist intelligence service that went wild investigating everyone and everything.

ACLU lawyers are now involved. The ACLU notes that the mandatory survey of speech activities "as written requires disclosure of presentations or trainings that have nothing to do with the work of DOSH and could include a range of private and/or political speech that public employees have a right to engage in without scrutiny by their employer or the government".

In a March 11, 2011 letter to John Duncan, Director of the Department of Industrial Relations, San Francisco-based ACLU staff attorney Julia Harumi Mass urges that the DIR notify DOSH employees they need not comply with the questionaire.

The letter from the ACLU is here.

Stay tuned.

Julius Young
www.boxerlaw.com

A new UCLA study finds that 1 in 4 Californians under age 65 lacked health insurance in 2009.

That's 8.2 million people in California alone.

Among people aged 18 to 65, 1 in every 3 Californians was uninsured.

That's a stunning statistic which undermines any of the glib TV talking heads who claim that our healthcare system is not broken and is the best in the world. A system that leaves 1 in 3 working adults to scrounge for healthcare at taxpayer funded hospital emergency rooms is not a viable system.

Those stats were generated before the recent large premium increases by Anthem Blue Cross. It's likely that with the skyrocketing premiums the figures will be much worse soon.

Disabled workers usually lose their health insurance and have no funds to buy COBRA coverage, so they usually find themselves uninsured.

The UCLA policy brief, by Shana Alex Lavarreda, E. Richard Brown, Livier Cabezas, and Dylan Roby, can be read in its entirety here:
http://www.healthpolicy.ucla.edu/pubs/P ... ?pubID=401

Stay tuned.

Julius Young
www.boxerlaw.com

In law it's never over til its over.

A bad ruling may cause consternation, but subsequent cases may limit or disapprove of the bad ruling. Courts may change their mind. Subsequent appeals or other court cases give courts a chance to look at concepts in a different way.

Lawyers understand all this, but average people often have trouble accepting the concept.

In 2006 I was very troubled by the Brashear case. It always seemed clear to me that the spinal surgery second opinion procedure under Labor Code 4062(b) required the employer/insurer to instigate the 2nd opinion process.

But that was not the opinion of the WCAB, which issued a "significant panel decision" in Brashear v. Nationwide Studio Fund (2006) 71 CCC 1282. In Brashear the WCAB held that it was the obligation of the worker to instigate the 2nd opinion process. The 2nd opinion process generates a report from an independent spinal surgeon on whether surgery is reasonably required.

But the WCAB saw the error of its ways. In 2009, the WCAB issued an en banc opinion in Cervantes v. El Aguila Food Proiucts, Inc (2009) 74 CCC 1336. Cervantes finds that the burden of requesting a 2nd spinal opinion falls on the employer/insurer, not on the worker.

The Cervantes opinion can be found here:
http://www.dir.ca.gov/wcab/EnBancdecisi ... cedures%20(11-19-09%20final%20draft).pdf

But would the California Court of Appeals agree with the Cervantes logic, or would the Court of Appeals revert to the Brashear holding?

That was the question in Elliott v. WCAB and Newsgroup of Sacramento, a case heard by the California Court of Appeal, First Appellate District, Division Four.

The Elliott opinion was rendered in late February, 2010.The Court adopts the Cervantes line of reasoning in interpreting Labor Code 4062(b).

In a nutshell, an insurer who receives a spinal surgery request must undertake utilization review. If UR approves the surgery the surgery must be authorized. If UR is not done in a timely manner, the surgery must be authorized.

But if UR is done in a timely manner and UR denies the surgery, it is the defendant who must file for a 2nd spinal surgery opinion. The timeframe for filing for a 2nd spinal surgery opinion is 10 days from receipt of the treating physician surgery recommendation. Under 4062(b), an employer must file the request on specified forms (see AD Rule 9788.11).

While it's always possible that another Court of Appeal could reject the logic of Elliot and Cervantes and endorse the Brashear approach, it seems unlikely.

So, six years after the SB 899 reform created the spinal second opinion process, we finally appear to know how it is supposed to work.

The average joe on the street would probably be amazed to hear that it took six years for such a basic statutory procedural issue to be settled.
Six years is a long time.

The law is like that.

Stay tuned.

Julius Young
www.boxerlaw.com

Lawyers know better.

Just too weird not to share with you.

The Carly Fiorina Hindenboxer Ad. All ye folks who are fascinated by the Hindenberg disaster gather round....All ye Led Zepplin aficionados...

Its time for another Zepplin...??????

Carly's Zepplin ad.

I try to stay away from U.S. politics that doesn't touch on worker issues.

But this is too tempting. Fiorina has topped the "Demon Sheep" ad, which launched an attack on Tom Campbell as a wolf in sheep's clothing.

In a direct assault on Senator Barbara Boxer (my law partner, Stewart Boxer's wife), Fiorina portrays Boxer as a malevolent Zepplin dirigible.

It's a wacky classic in the annals of poiltics:
http://www.youtube.com/watch?v=lJKlc77K5dg

Guess I should not have expected anything non-wacky form one of the worst business executives ever. I beg you to view this wacky classic.

Meg Whitman, who contributed to Boxer's last campaign, would be hard pressed to vote for this loser.

The great thing is that the hapless Fiorina is giving us some videos that will last forever in campaign lore.

Julius Young
www.boxerlaw.

Insurance Commish Steve ("the turtle will beat the hare") Poizner and
eMeg Whitman are duking it out this weekend at the GOP Convention in Santa Clara.

Whitman has finally started talking, after a disastrous phony town hall meeting in Orange County:
http://www.youtube.com/watch?v=_t3kSLSBBHs

But you, dear readers, have more lofty aims for your Saturdays than watching phony politicians set up their manipulations.

You could be reading substantive studies on the comp system. Studies like the RAND study recently posted on the CHSWC website on return to work programs. The study, "How Effective are Employer Return To Work Programs?" was written by Christopher McLaren, Robert T. Reville, and Seth A. Seabury. It's available here:
http://www.dir.ca.gov/chswc/Reports/201 ... ANDRTW.pdf

The summary notes that work injuries are costly and "policymakers are
continuously motivated to find new ways to reduce the duration of work-related absence and improve early return-to-work". The authors note that some states offer subsidies to employers who accommodate, hire or retrain injured workers.

The RAND study surveyed efforts at 40 large self-insured employers and 17,000 workers injured between 1991 and 1995.

The findings noted that workers at a company with a return-to-work program returned approximately 1.4 times sooner than at companies without a program. This was equivalent to a reduction of 3-4 weeks on average duration of work absences for workers in their sample.

RAND concludes that "these programs are cost-efective for large employers" but that "more work is needed to determine whether these programs could be adopted successfully by smaller firms".

California did establish a program under Labor Code 139.48 to help some employers pay for workplace accommodations. In earlier posts I noted that there had been an underwhelming response to that program:
http://www.workerscompzone.com/index.ph ... 310-213410

But with vocational rehabilitation gone (replaced by the job displacement voucher), return to work programs are important. The RAND paper is an interesting study which confirms that return to work programs can be a win-win for employers and workers. The study is currently posted on the CHSWC website for comments.

Stay tuned.

Julius Young
www.boxerlaw.com