Wednesday, March 24, 2010, 08:52 PM - Political developmentsThe breaking news today is that the California Supreme Court has decided to hear the Duncan v. WCAB case, also known as the XYZZ case.
Duncan/XYZZ is a case involving interpretation of the start date for computing cost of living increases (COLAs) in life pension cases (cases with permanent disability of 70% or more).
Under the miserly AMA Guides system, a worker must have a severe disability to get to the "life pension" level. As a result, the COLA start date argument affects a limited number of cases.
The Duncan/XYZZ case was somewhat of a surprise, as the California Court of Appeals, 6th District in Duncan/XYZZ rejected a decision by the WCAB which ruled that COLA calculations begin as of the date of injury.
Duncan/XYZZ holds that the date for calculating COLA increases is 1/1/04, irregardless of the date of injury.
Commentators have done seminars on COLAs. Several years ago I was on a panel at the CAAA convention along with defense attorney Richard Jacobsmeyer and applicant attorney Jeff Greenberg. We debated various rationales for different start dates of COLA calculations.....1/1/04
(the date the COLA law went into effect)....the date of injury.....the P&S date....
The 1/1/04 start date has been criticized by some commentators as creating a "double dip". The DWC challenged the 6th District decision, seeking Supreme Court review. Insurers have reacted with alarm over possible large payouts on future cases (few cases have been affected yet). Advocates for disabled workers cheered, noting that the 6th District interpretation would result in more just awards for severely disabled workers whose earning capacity was substantially affected by injury.
This disputed interpretation of Labor Code 4659(c) appeared to have been resolved by Duncan/XYZZ.
Reading the tea leaves, it seems likely that the California Supreme Court may not have taken the case unless there was substantial interest in
revisiting the calculation start date.
Interests of injured workers have not fared well at the California Supreme Court since the 2004 SB 899 reforms. The applicants bar did not prevail in the Brodie case which dealt with apportionment calculations. Several years later workers were dealt a setback in the Smith and Amar cases, which rejected a lower court ruling that would have allowed attorney fees for prevailing in court on treatment denial issues.
The attorneys who argued on behalf of workers in the Duncan/XYZZ case, Art Johnson of San Jose and Marc Marcus of Sacramento, are among the best and brightest in the applicant bar. But they may have their work cut out for them.
To see an earlier post I did on the issue, click here:
http://www.workerscompzone.com/index.ph ... 130-223021
Tuesday, March 23, 2010, 11:01 PM - Political developments"Poizner's done; it's time to stick a fork in him...."
Thus sayeth Tony Quinn, a longtime California political commentator and observer of the Sacramento scene. You can read Quinn's piece in a blog post on Fox & Hounds titled "Poizner's Suicidal Mission":
http://foxandhoundsdaily.com/blog/tony- ... al-mission
Monday, March 22, 2010, 10:53 PMWorkers' comp stakeholders may wish to take a close look at DWC rules which have now been posted for public comment.
Physicians will want to look at the new Lewin Group study on how physicians are paid in workers' comp, "Adapting the RBVRS Methodology to the California Workers' Compensation Physician Fee Schedule":
http://www.dir.ca.gov/dwc/RBRVSLewinRep ... rt2010.pdf
The proposed rules adopt the RBVRS methodology to compensate doctors.
This is part of the DWC 12 point plan to control medical costs.
Also posted on the DWC website are proposed treating physician forms.
Public comment is invited til April 5. You can find the regs here:
http://www.dir.ca.gov/dwc/dwc_newslines ... 14-10.html
Saturday, March 20, 2010, 12:54 PM - Political developmentsNow it's official.
The Governor's furloughs of SCIF personnel has been declared illegal. The California Court of Appeal has upheld a Superior Court order finding those illegal.
Here's a pdf of the decision by a 3-0 vote of the California Court of Appeal, First Appellate District, Division Three:
http://www.courtinfo.ca.gov/opinions/do ... 125292.PDF
Wednesday, March 17, 2010, 03:47 PM - Political developmentsControversy 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.