Sunday, April 29, 2007, 02:33 PM - Political developmentsIt was a week with several reminders of how dangerous the workplace can be for many workers. On Friday, a 52 year old plumber working on the remodel of an Oakland high rise fell 14 stories to his death at the intersection of Telegraph and Broadway, just across the street from my office. And last night, a tanker driver crashed, causing an explosion which collapsed a major Bay Area freeway.
The workerscompzone is often not a pretty place.
Here, in no particular order, is a recap of the top California workers' comp events of the past week, (Note: I will be covering many of these in depth in posts to come soon):
1. In 2006, the California legislature passed a law exempting certain public safety officers from the Schwarzenegger apportionment statutes which have been interpreted to allow deductions from awards for so-called disability "causes" such as the aging process, obesity, non-disabling pre-existing pathology, etc. This week, a California Court of Appeal held that apportionment exemption to be retroactive. The case, Fuentes v. Avenal State Prison, is a big victory for injured police, fire and prison guards.
2. The California Commission on Health, Safety and Workers' Compensation (CHSWC) heard a presentation by Frank Neuhauser and Colleen Donovan of UC Berkeley on the increasingly serious problem of employer payroll fraud in California workers' comp.
3. CHSWC (often called "Cheese Whiz" by comp insiders) also posted a draft report on the Uninsured Employers Benefits Trust Fund. It seems that the number of uninsured claims paid has increased 64% from 2003 to 2006.
4. Again, from Cheese Whiz (CHSWC): An April 2007 report and recommendations on the spinal surgery second opinion process. The conclusion? The spinal surgery second opinion process is a "resource-intensive regulatory process that appears to accomplish little or nothing." CHSWC concludes , "The adoption of more intensive UR and introduction of the ACOEM guidelines have probably eliminated the need for spinal second surgery opinion process (SSSOP)." Tell that to a worker suffering from excruciating back pain who has been denied back surgery by an ACOEM doctor who never examined the worker.
6. Yep, you guessed it -- yet another development from Cheese Whiz (CHSWC). An April 2007 draft paper on how Schwarzenegger's workers' comp reform (SB 899) has affected the law of apportionment. Prepared by long-term California workers' comp practitioner Charles L. Swezey, the CHSWC paper on apportionment points to the disputes on apportionment law we will see over the next several years. Can an insurer deduct from a disability rating based on the AMA impairment rating sytem for a prior rating based on another system? Can you subtract apples from oranges?
7. The California Insurance Committee passed several worker-friendly bills out of committee on a Wednesday committee vote. Among these was AB 1073 sponsored by Pedro Nava of Santa Barbara. Nava's bill would exempt certain post-surgical chiropractic and physical therapy treatment from the 24 visit limit. Also advancing out of committee was San Jose Assemblyman Joe Coto's bill (AB 338) to revise the 2 year temporary disability limit. Coto's bill would expand TD eligibility to 156 weeks over a 5 year period.
8. The bill to allow State Comp Insurance Fund (SCIF) to sell health insurance advanced from the Assembly Health Committee. The bill (AB 550), sponsored by Assemblywoman Fiona Ma of San Francisco, could become important in the 2007 legislative debate over healthcare reform. Why? To expand coverage to the currently uninsured (whether by requiring workers to carry it or employers to pay for it), there may be a need for an insurance carrier of "last resort." SCIF historically plays such a role in the California workers' comp market. But this comes at a bad time, as SCIF is reeling from bad press and investigations into executive mismanagement and poor oversight.
In future posts, I will provide links to the CHSWC position papers listed above. They don't appear on the CHSWC site yet, but probably will soon. Here is a link to the CHSWC main site:
Thursday, April 26, 2007, 09:30 PM - Political developmentsStay tuned for my upcoming blog post, "When is an Amputation an Amputation?"
In the meanwhile, I hope you will check out the sister blog of workerscompzone.com. I'm referring to attorney Felicia Curran's blog www.elderadvocacyblog.com. You can get to that blog by clicking this link:
Boxer & Gerson LLP is a litigation law firm, and one of our key practice areas is elder abuse litigation. Our lawyers represent seniors (and their families) who are subjected to substandard medical treatment and nursing home care. Felicia's blog is a great resource for people with elderly parents and friends.
Check back for my post about the 2 year workers' comp temporary disability limit and the current controversy about "amputation" exceptions.
Tuesday, April 24, 2007, 10:36 PM - Understanding the CA WC systemIt happens two or three times a month. I go to my mail slot at Boxer & Gerson. Buried along with the incoming mail and subpoenaed medical records is a VHS tape or a DVD.
And will I soon be getting just a notice of a clickable link to see my client on video on You Tube? Here in Web 2.0, we are a long way past Betamax.
In the brave new world of surveillance, there are cameras everywhere. Today's cameraphones, mini videocams and hidden microphones make it much easier for investigators.
Investigations are big business in California workers' comp. Yet, in over 20 years of handling workers' comp cases, I have had only one client indicted for workers' comp fraud. And I have had very few cases where
my client's testimony was rejected by a judge (or agreed medical examiner) due to the content of "films" (er... videos).
Perhaps that's due in part to client preparation. I try to remind my clients: don't lie and don't exaggerate. If you are going back to work, announce it. Be careful with the words you use in deposition and with doctors. Never means never, ever, ever. Sometimes is not never. Occasionally is not never.
Assume that you may be watched or followed. Don't apologize for living your life, but recognize that when you make a claim your privacy is at risk. Don't be arrogant. Assume that the facts will come out. Your home may be your castle, but areas viewable from public spaces are fair game.
Statements you give to investigators, claims examiners, lawyers, doctors and other people may be used against you. Histories you give to doctors will be read by other doctors.
I tell my clients: don't let yourself be a film star. It's not a workers' comp fantasy you want to fulfill. And I'd just as soon munch on popcorn with my friends.
Monday, April 23, 2007, 10:24 PM - Political developmentsIt's a week of hearings and studies:
The Assembly Insurance Committee holds hearings at 9 am in Sacramento this Wednesday on various workers' comp issues:
The Commission on Health Safety and Workers' Compensation (CHSWC) meets in Oakland on Friday at 9. Among other issues, CHSWC will be hearing reports on apportionment in workers' comp and employer premium fraud. The agenda is noted here:
http://www.dir.ca.gov/CHSWC/Meetings/20 ... 72007.html
Meanwhile, the DWC continues work on its study of long-term wage losses. And its QME regs are in the early draft stage. Doctor groups such as CSIMS are weighing in on regs that would determine how many offices a QME can have and how far apart the offices need to be:
A lot happening. Or maybe very little.
And applicant attorneys and insurers continue to wait for the Supreme Court decision in the Welcher, Brodie and Dykes cases, interpreting apportionment under SB 899, Schwarzenegger's comp reform. That decision may set the tone for judicial interpretation of scores of cases.
Monday, April 23, 2007, 09:08 AM - Political developmentsAs I continue to note, the debate in Sacramento over health care reform is critical to many injured workers since so many of them lose their group health coverage.
Last week, the Senate Health Committee voted favorably on the single payer plan sponsored by State Senator Sheila Kuehl. The single payer concept is still alive for now. My blog post last week, "The $12,000 Broken Rib," covers the single-payer issue.
But most Capitol observers don't believe it has enough political traction to survive as the legislature's plan, let alone get the support of Governor Schwarzenegger.
I frequently disagree with fellow blogger Bill Bradley (not the former basketball player-turned U.S. Senator!), but his blog, New West Notes, is often worthwhile reading for its take on California politics. You may find it interesting to read the following blog post on "Prognosis For Schwarzencare":
http://billbradley.pajamasmedia.com/200 ... rzcare.php