Thursday, April 30, 2009, 10:48 PM - Political developmentsI've just returned from an event sponsored by the Bay Area's Asian Law Caucus. The event honored Fred Korematsu (who died in 2006) and the legal teams that helped him in the 1940s and 1980s.
Korematsu was a principled man who contested the right of the U.S. Government to send Japanese-Americans to detention camps in California during World War II. He fought his case all the way to the U.S. Supreme Court, losing in 1944.
The court upheld compulsory excusion of Japanese during a time of war.
But in standing up for principle, Korematsu was much revered in Asian-American circles. Tonight, most of the heavy hitting law firms in Northern California had a table there in his honor.
Decades after his Supreme Court loss, a visionary group of lawyers (and a history professor) digging back into the case in the early 1980s, succeeded in overturning the Korematsu conviction (via a writ known as "Coram nobis") in Federal Court in 1983.
It's an inspiring story. The lawyers unearthed evidence of suppressed evidence and governmental manipulation. Judge Marilyn Hall Patel threw out the conviction.
It shows that in law, it's not over til it's over.
But on the workers' comp front, is the "Benson" issue almost over?
The California Supreme Court has denied the petition for hearing in the Benson case. I learned this today in speaking with Ms. Benson's attorney, Tim Timmons of Concord.
The same issues are pending in the California Court of Appeal in Southern California in several cases. But the Supreme Court's action in deciding not to hear Benson does not bode well for the position of the applicant bar in those cases. The result in Benson was the demise of the long held California rule rating many successive injuries as one rather than splitting awards between discrete dates of injury.
The Benson court's interpretation of the 2004 reforms means that some workers will see their indemnity payment awards reduced since the law
will no longer recognize the synergistic effect of successive incidents, even if those incidents involve the same employer and same body part.
That is, unless we see a differing result in the SoCal courts.
Meanwhile, today I joined other stakeholder wonks in Oakland at the CHSWC meeting. I'll be blogging in the coming weeks about several of the topics.
For the moment, I'll offer you a link to a DRAFT REPORT of a study of self-insurance groups that was done by CHSWC staff, including Lachlan Taylor:
http://www.dir.ca.gov/chswc/Reports/200 ... Report.pdf
There has been some concern about the self-insurance groups, and the report makes a number of recommendations. Note that it is a DRAFT REPORT and that the final report could be different.
Tuesday, April 28, 2009, 09:56 PM - Political developmentsToday was Steve Poizner's day in the limelight.
As California's Insurance Commissioner, Poizner presided over the CDI hearing on the recommendation of California's Workers' Compensation Rating Bureau (WCIRB) that the "pure premium rate" for comp coverage be raised by 23.8%
I attended the morning hearing session in San Francisco. More about the substance of the hearing later. Bit first some breaking news on Poizner's announcement.
The big news is that Poizner did not take the WCIRB's bait. According to a Department of Insurance press release, Poizner has rejected the WCIRB's projected rate increase call (note: carriers are free to price their comp insurance rates as they see fit, since the pure premium rate is advisory anyway).
Poizner's press release is here:
http://www.insurance.ca.gov/0400-news/0 ... 051-09.cfm
I received the e mail notice of the press release just after 1 pm today, so it appears that it did not take Poizner long to make up his mind on the WCIRB recommendation. Indeed, testimony was still continuing when I left the meeting at noon, so by my math it appears that the press release was probably prepared before the hearing started.
Whether you're for or against the rate increase, that strikes me as a bit strange. After all, the hearing involved complicated and controversial issues, all seen through actuarial assumptions .But the Poizner press release would appear to have been fashioned beforehand.
If I'm wrong, I'll stand corrected by one of my readers. Perhaps they had prepared multiple press releases for every conceivable conclusion. Possible, but doubtful.
As I've noted before, this current comp rate issue is a big test for Poizner, who has had little on his plate that is as high profile as this issue.
Poizner's press release makes him look strong. Perhaps my "Inside Poizner's Head" blog was spot on after all.....:
http://workerscompzone.com/index.php?en ... 318-224325
Giving Poizner credit, he presided over today's meeting well and asked some very incisive questions. He's clearly bright and capable.
On the downside, in the questions and remarks I heard from Poizner, I heard nothing that indicated great concern for the plight of the injured worker. His focus seemed to be on how the rates would affect jobs and the California economy.
That's important, and worker advocates who ignore focus on the relationship between jobs, the economy and comp are perhaps tone deaf.
But it would be great to hear some more empathy from Poizner about the situation of disabled workers and more concern over whether the system is providing adequate benefits. (In fairness, it should be noted that I had to leave the hearing at 12;15 and so did not hear all of Poizner's remarks).
Even if he doesn't care, the winds of politics will require that he project more empathy. A major question swirls around this guy's candidacy: whether he can connect with ordinary folks who comprise the California electorate.
In a somewhat awkward interchange, Poizner appeared to give Michael Nolan, President of the California Workers Compensation Institute, a hard time over whether CWCI is "licensed". Nolan handled that interchange with aplomb, noting that a wide range of comp think tanks (RAND, CHSWC, etc) collect and share comp data. I wound up wondering whether others in the room saw that "license" interchange as quite strange. But hey, I'm just a blogging attorney......
Back to the press release....
Poizner rejected the portion of the rate increase request attributable to projections of increased permanent disability costs as a result of the recent Almaraz/Guzman and Ogilvie decisions. In doing so, he noted that the decisions are not final and may be reversed. In remarks in the morning session, he indicated that the Department of Insurance would be filing a brief on the issue (I was not clear whether the "brief" will be with the WCAB or just in later appeals likely to come in Almaraz/Guzman/Ogilvie).
Poizner has called for a second hearing on June 8, in Sacramento. The hearing is to focus on medical treatment cost issues.
Strategically, this is probably smart. Medical costs do appear to be driving increased comp expenditures. This includes substantial increases in pharmaceutical costs, medical cost containment expenses, and medical-legal costs.
I'll be blogging much more on medical treatment costs over the coming month, as the issue remains under the regulatory microscope. Ultimately, Poizner has no say over how treatment cost issues are handled.
That's the province of the DWC (which has already hammered out most of the treatment guideline regulations) or the legislature.
But the June hearing gives Poizner another day in the limelight.In Sacramento, where he can show his gubernatorial bonafides. Of course, the legislature could hold its own hearings.........
The pure premium rate increase will have to wait........
Monday, April 27, 2009, 10:35 PM - Understanding the CA WC systemTuesday (tomorrow) April 28 the Department of Insurance holds a hearing on workers' comp rates.
Injured workers and labor activists are welcome to attend the meeting.
The hearing, slated to start at 10 am in the 22nd Floor Department of Insurance hearing room at 45 Fremont St. in San Francisco, is in response to the WCIRB's recommendation of a large price increase for comp insurance. The recommended increase is now a whopping 23.7%.
With his gubernatorial campaign sputtering (low in the early polls and lots of campaign staff turnover), the comp pricing issue is a high profile assignment for Insurance Commissioner Steve Poizner. Comp costs have been an ongoing concern in the business community, particularly in a tight economy. Politically the issue is a hot potato; how that is handled could prove to be an opportunity or a liability for Poizner. You can see my recent blog on that, "Inside Poizner's Head") by clicking here:
http://workerscompzone.com/index.php?en ... 318-224325
The Insurance Commissioner has no ultimate control over comp pricing.
He can accept the WCIRB recommendations or reject them and propose other price targets, but these are not mandatory. But the WCIRB/Department of Insurance rate filing process has great significance politically.
Poizner has criticized WCIRB forecasting in the past. And he's been willing to reject WCIRB recommendations.
In any event, it's pretty much all show. The pure premium rate that is set by Poizner is not binding on carriers Some will price their comp business below the pure premium rate and some may price it higher.
But the PR symbolism is important.
If Poizner accepts the large rate increase recommended by the WCIRB, the signal is that all is not well in comp. Injured workers' and their advocates know that, but employers and the public have been led to believe that the 2003/2004 reforms "fixed" the system.
Given the size of the WCIRB recommended rate increase, the press and the business community will demand to know what has occurred. Were the reforms oversold? Did the reforms result in artificial savings? Should employers accept that higher comp costs are simply inevitable? Is it possible to inocculate the comp system against medical inflation which is ravaging our healthcare system generally?
I don't expect any mind-bending epiphany tomorrow on the issue of why medical costs appear to be rising. That's complicated and probably demands more study data than the WCIRB has developed. Nor do I expect anything much on employer profits and broker fees. Poizner has shown no willingness to take on the broker community or carrier profits.
Recent past hearings have been notable for concern over the rising portion of comp premiums spent on loss adjustment expenses, i.e. insurer overhead expenses.
But it's clear that Poizner's department can blame permanent disability for only a small portion of any projected increase in costs. Even if the Almaraz/Guzman decisions went into effect, the WCIRB's figures project these to be responsible for only around 1/4 of the recommended premium increase.
Saturday, April 25, 2009, 08:02 AM - Political developmentsBeijing, China
(workerscompzone has been traveling in Asia; this is the fifth and last installment of this journey....)
On to Beijing. From Hangzhou, the high speed rail to Shanghai is a breeze.
The train is filled with road warriors. Practically everyone has a laptop and is working the laptop and the cellphone. These are folks making every minute count.
After grabbing a kumquat mojito at rooftop Shanghai bar, it's off to the capital.
If Shanghai is the San Francisco, Beijing is the Phoenix or the L.A. It's vast, flat, mostly low or mid-rise.
Joining the local tour for a day, you learn the most interesting things.
The Ching emperors, who lived in the gargantuan Forbidden City, were pampered beyond belief. I'm told they had tasters to pre-taste food (lest they be poisoned) and tasters of their body excretions (to make sure their health was in balance).
The tour guide suggests we go to the Chinese herbal medicine factory, so off we go. Chinese medicine doctors (in white coats) sit down with the group and feel pulses. I'm only a partial skeptic, as I realize that Chinese herbal medicine goes back thousands of years. Besides, aren't many medicines herbal compounds anyway? There's always that fear that the cure for some horrible disease could be found in a plant in the Amazon rainforest that's just about to be plowed under.
These white coated guys are sharp. Without missing a beat, they diagnose some of the health issues of some of my fellow travelers. The group sort of collectively gulps.
Then again, they diagnose some of my travel partners with conditions they don't in fact have. The group gets edgy.
By this time we have been given a sheet showing various alternative herbal compounds that are available for sale downstairs. The names of the various flowers and roots are listed. They're so unfamiliar that it's clear only a Harvard botany PhD. candidate would know where these items could be found.
By now we've looked at the price tag for some of this stuff. It's several hundred U.S bucks a month and they are recommending 3 months minimum. This is some serious commitment.
The translator seems to morph into a salesperson. I detect that "Always be closing" sales pitch. Alec Baldwin in Glengarry Glen Ross. She's sharp. Knows how to play on a parent's concern about a kid's health issues. She meets resistance by taking an "it's your choice whether to have better health or not" attitude. She speaks very bluntly to the people who look stressed, overweight or tired.
But some of the group walks away.
Now the translator seems quite impatient. I can see her impatience as seeing whether someone will take the bait.This triggers one of the group muttering that she's quite a bitch.
Others are torn. Should we just try the stuff? If it's this arcane it's got to be worthwhile.
Is Western medicine killing us? Maybe, but the sales pitch is too much.
If your insurance doesn't pay for something it will make you think twice about whether you need it (in workers' comp this is not a problem).
We leave without buying anything. Got to get over to the Ming dynasty tombs.
The sun is getting low on the horizon, and the vendors are setting up their stalls where they sell fried goat testicles and caramelized scorpions. We're told to avoid these like the plague; the frying oil is said to have been reused so many times that it looks like oil.
Got to get over to those Ming tombs.
You can read earlier dispatches from Seoul, Shanghai, Xian and Hangzhou by scrolling down.
Stay tuned. Next week there will be hearings on the WCIRB's rate filing.
Should be interesting.
Thursday, April 23, 2009, 03:43 AM - Political developmentsHangzhou, China.......
(workerscompzone is traveling in Asia and blogging on some items of interest he encounters........)
It's 1 p.m. Tired of lotus root stuffed with sticky rice, stinky tofu and Hainan drunken chicken, workerscompzone dreams of Western food.
AhHa...dreams do come true. The Golden Arches are visible in the next block. Better known as McDonald's.
Inside, roughly 50 young Chinese young men (and one Chinese girl) sit, sipping colas and munching fries, eyes glued to a flat panel TV. They're watching the Rockets play Portland in the NBA playoffs. Loud cheers erupt when Yao Ming makes a dunk or blocks a shot. When the Rockets fade in the last few minutes, the crowd drifts away, unhappy that their warrior's team has not carried the day.
This is Hangzhou, a city of approximately 6.5 million.
The day started in the Shanghai train station, a beauty that could win international architectural awards. The Shanghai-Hangzhou trip, about 250 miles, takes around an hour by high speed rail at a tariff of $10 U.S. It's the sort of train that one day may link L.A. and the Bay Area.
If you awoke from a deep slumber and found yourself here, you might
for a moment think you were in Beverly Hills. Huh?
Long treasured for its scenic lake-vistas, Hangzhou has been favored for centuries by Chinese royalty and artists. Classic paintings of Pagodas and Buddhist temples on mist enshrouded hills overlooking West Lake......perhaps you've seen that in walks through various California Chinatown curio shops.
Despite the lakeside traffic, West Lake has a dreamy, calming quality that has seduced emperors and poets. It's one of THE places to be married in China.
But what's the Beverly Hills reference?
Hangzhou's West Lake continues to be a favorite getaway for people all over China. But today I notice car dealerships. Lamborghini. Maserati.
Ferrari. Rolls-Royce. Brand Italia and Brand Paris are well represented here.....Giorgio Armani, Dolce & Gabbana, Hermes.
And, of course, Starbucks. The Hangzhou area is famous for silk, and tea. But coffee looks pretty damn popular.
Entrepreneurs are on the rise in China, and some do very well, thank you. Riding in a taxi, I note some of them-thirtysomethings-working the cell phone in the back of their BMWs.
Later I stop in at the Hyatt Hotel on West Lake to pick up a copy of the International Herald Tribune. Got to stay in touch. In the Herald Tribune I read that Wii injuries are on the rise. Wii shoulders and Wii knees...with game players complaining of strains and swelling related to use and overuse of the Wii game.... Perhaps in the comp world we'll start seeing depo questions on gaming practices??
Turns out they're having a Chinese-Arab business investment summit here, at the Hyatt. The folks milling around in the lobby before the conference begins look like they're pretty wired-in players. I could get into the parlor game of speculating whether two crew cut American ex Marines in the corner are part of someone's bodyguard force or just wheelin' and dealin' on their own account.
In the back streets they're whipping up Schezuan spiced-turtle, but here near the lake it's sushi and KTV parlors and some good Malaysian curry houses.
It's a big world out here. I'm like a sponge, soaking up some of these wacky contrasts as I move through these places.
My next post will be from Beijing (you can check my recent posts from Seoul, Xian and Shanghai). Next week I'll be back to following the ongoing California workers' comp scene.