Wednesday, April 27, 2011, 08:58 PM - Political developmentsThe current version of The Economist, a British weekly newsmagazine, features a graphic of a California surfer holding a deformed surfboard. The piece is entitled "Where it all went wrong: California offers a warning to voters all over the world".
The deflated phallic image highlights the current California predicament.
Political gridlock, as legislative vote math blocks revenue raising solutions. Initiative-imposed political solutions which have left policymakers boxed in. High unemployment.
As with so many crises these days, there is much pressure to blame working people. Can we really afford a decent unemployment system?
Should our employers pay a living wage? Can we afford good schools?
Can we afford to pay our public employees a pension that will sustain them? Can we afford to have a workers' comp system that provides adequate benefits to the disabled?
Should we sacrifice a group here or there? Are school kids more important than Medi-Cal recipients? Should working folks care about the rights of injured workers, or public employees with pensions, or immigrants who are trying to create a stable life here? Is someone, or some group, expendable? Too expensive? Too inconvenient?
In a week in which the failed Pacific Gas & Electric CEO resigns and is rewarded with a $35 million severance package, and soon after it has been revealed that industrial behemoth General Electric is paying no taxes at all, perhaps it is time to take stock of where we are.
No wonder so many "regular folks" feel that the deck is stacked against them.
It's good to have some think tank voices advocating for the interests of working men and women. There isn't enough of that in California or the nation.
Prominent among those advocates are some of the researchers and writers associated with the UC Berkeley Labor Center.
Just this week the UC Berkeley Labor Center issued short issue papers worth checking out,
There's "Living Wage Policies and Big Box Retail: How a Higher Wage Standard Would Impact Walmart Workers and Shoppers", by Ken Jacobs (UC Berkeley Center for Labor Research and Education), Dave Graham-Squire (UC Berkeley Center for Labor Research and Education), and Stephanie Luce (City University of New York):
http://laborcenter.berkeley.edu/retail/ ... cies11.pdf
And there's "Unemployment Benefits Critical to Jobless Workers and Economic Recovery in California" by Sylvia A. Allegretto (economist at the Center on Wage and Employment Dynamics at the Institute for Research on Labor and Employment) and Laurel Lucia (Center for Labor Research and Education at UC Berkeley's Institute for Research on Labor and Employment):
http://laborcenter.berkeley.edu/researc ... s_2011.pdf
Ultimately we can't have a healthy economy without an economically healthy middle class. These studies demonstrate that.
Monday, April 25, 2011, 09:24 PM - Understanding the CA WC systemComp's got talent.
The system has its share of renaissance men and women. In earlier posts
(see links below), I featured some of the minstrels of the system.
Today, in the belief that the pen is truly sometimes mightier than the sword, we feature the written arts.
Nesting inside the legal department at SCIF's Pleasanton office is David Kizer. Kizer and his wife, a DEU rater at the Oakland board, are well known and well-liked folks in the Oakland workers' comp community.
Kiser's recent work is "Wolves at the Door: The Trials of Fatty Arbuckle".
Arbuckle was a prominent actor, director and writer during the 1920s silent film era of Charlie Chaplin and Buster Keaton.
Arbuckle's career took a dive when a young actress became ill and died at the St. Francis Hotel in San Francisco in 1921. Arbuckle was accused of rape and manslaughter. He was acquitted after trials but the notoriety destroyed his career.
Here is a squib from the Amazon website describing Kizer's book:
“Wolves at the Door” is the compelling true story of actor Roscoe “Fatty” Arbuckle manslaughter trials of 1921-1922. It is the narrative day by day account of the still unsolved mystery surrounding the sudden death of Virginia Rappe, four days after a drinking party in Arbuckle's rooms at the St. Francis Hotel at the height of prohibition. "
Amazon's summary continues:"As seen from the perspective of Arbuckle, the judges and the attorneys, 'Wolves at the Door' combines the public's adulation with the early stars of Hollywood and the drama of courtroom confrontations and the looming presence of William Randolph Hearst."
"The science of ‘CSI’ was introduced to America during the trials for the sole purpose of convicting Arbuckle. Some of the witnesses were coerced and others simply lied. The mystery of Rappe's death became the national fixation as perhaps the funniest man in the world went on trial for his life for a crime that the evidence showed he could not have committed."
According to one reader:
"Wolves at the Door, The Trials of Roscoe"Fatty" Arbuckle" by David Kizer is without question the best book written on the Arbuckle affair. Mr. Kizer skillfully tells this tragic tale of a decent guy unlucky enough to be in the wrong place at the wrong time and paying for it with his career.
Mr. Kizer is a very skilled writer, compellingly relating the story from what clearly is exhaustive research. He puts you in Roscoe's Pierce-Arrow; he puts you on the 12th floor of the St. Francis Hotel; he puts you in the prison cell where you feel the fear and confusion, defeat and despair that fell upon Roscoe when his life went from unimagined wealth and fame to universal derision in the blink of an eye. As a trial lawyer for over 26 years I found the explanations of the legal proceedings compelling and accurate. I could not recommend this book any higher"
Kudos to Kizer for resurrecting this fascinating event in American history.
Once again, we have proof that comp's got talent.....
To find a copy of Kizer's book; go here:
http://www.amazon.com/Wolves-Door-Trial ... B004FGMV5C
Fatty Arbuckle now has a posthumous Facebook page:
http://www.facebook.com/group.php?gid=2 ... amp;v=wall
And check out earlier versions of Comp's Got talent:
Version 1.0 (featuring Boxer & Gerson's Ralph Paterno)
http://www.workerscompzone.com/index.ph ... 017-214056
Version 2.0 (featuring the Golden Gate Gypsy Orchestra):
http://www.workerscompzone.com/index.ph ... 214-205652
Version 3.0 (featuring attorney Mark Vickness and his band):
http://www.workerscompzone.com/index.ph ... 324-222021
Thursday, April 21, 2011, 09:41 PM - Medical treatment under WCOne thing is clear about yesterday's Valdez en banc decision: the California Workers' Compensation Appeals Board has run out of patience with lawyers and claimants who attempt to circumvent the MPN and QME system.
The decision holds that where a worker is validly covered by an MPN, reports from doctors outside the MPN who treat are not admissible nor reimbursable.
In all likelihood the effects of the decision will be profound. Many non-MPN doctors who took treatment referrals from attorneys or other non-MPN doctors are likely to see their referrals dry up.
Yes, there will be ongoing fights about whether workers are bound by the MPN in the first place. And there will always be denied cases where non-MPN doctors will be able to treat.
But if a non-MPN doctor's report is neither admissible or reimbursable, the tendency to use such doctors will fade fast.
But the opinion of Commissioner Brass raises good points.
Brass concurred in this case because it appeared that the applicant left the MPN within 3 weeks on the advice of her attorney's firm.
But Brass writes that there may be good reasons in a particular case for a worker to go outside the MPN. He notes that "There may be a misdiagnosis, a lack of effective treatment, and/or an unreasonable delay in providing care".
Let's muse about this a bit.
Say the MPN doctor says you are fine, go back to work. You know you are
not fine but you try for a couple days. Your back is killing you and you wind up unable to walk. Getting up out of a chair you fall to the floor. Your 10 year old can't help you, so the ambulance is called. The hospital ER, which is not part of the MPN, runs a MRI. You have a herniated disc.
Does Valdez tell us that those hospital records are inadmissible? That that ER bill and MRI are not reimburseable?
If so, that's both shameful and unworkable.
One might understand the goal of having MPNs as a cost containment measure, and one might understand the impulse to cut down on manipulative attempts to self-procure treatment.
But workers' comp is dealing with a population that is in pain, sick, and often desperate. Situations develop that are resolved by ERs and emergency tests.
The board majority has now adopted a harsh rule which will be difficult to apply in such situations. That the board majority didn't address the concerns listed by Brass speaks poorly for their decision.
Suppose a worker has test, which the MPN doctor reads as negative. The worker then elects to get retested at a university-type center which has more sophisticated test equipment. The worker pays for the test, which documents the condition after all.
The parties then proceed to a panel QME or AME. Defense counsel writes to applicant's lawyer, objecting to the positive test results being shown to the panel QME or AME. The defense counsel claims that under the rationale of Valdez (and the recent Scudder panel decision), that the non-MPN test results are inadmissible, arguing that they are "fruits of the poisonous tree" and should not be shown to the QME/AME.
In an accepted skin cancer case the MPN doctor says you don't have now have melanoma cancer. The non-MPN doctor says you do. They operate on you and remove it. Not admissible? Not evidence the QME can see?
Again, if the comp system has devolved this far, to the point of this much procedure over substance, then the system may not be worth saving.
One could spend an evening easily devising a number of such real world examples of how disputes and medical diagnoses unfold. Many of those situations have nothing to do with avaricious attorneys who are attempting to subvert the MPN system.
Yet, as Brass notes, the WCAB majority has set forth a ham-handed rule that is overbroad.
Wednesday, April 20, 2011, 10:33 PM - Medical treatment under WCCalifornia's Workers' Compensation Appeals Board has rendered an em banc decision on medical treatment and MPNs.
The case, Elayne Valdez v. Warehouse Demo Services, is likely to have a significant impact on the California workers' comp system.
In Valdez, there may have been a valid MPN. I say may, because the WCAB decision defers a determination on that issue, but analyzes the case on the assumption that there was probably a valid medical network.
For those of you late to the party, employers and insurers can set up networks, forcing workers who do not have a valid predesignation on file to treat with a doctor on the network.
Around the state, different patterns of workers' comp practice exist.
In Southern California workers and attorneys have often sought to regain
"medical control", finding technicalities to allow the worker to escape the MPN network and treat elsewhere. With a large number of doctors willing to provide such treatment, often on a lien, workers would sometimes treat off-network.
In Northern California this is seen much less frequently, probably because there is not a large pool of non-MPN physicians willing to "treat on a lien".
In Valdez, Ms. Valdez treated with an MPN doctor for about three weeks.
At that point, she apparently was referred to a non-MPN doctor by her attorney.
Valdez did not attempt to change doctors within the MPN. Nor did she invoke the infrequently used procedure to seek a formal "second opinion".
Nevertheless, at trial level the Workers' Comp Judge based an award of temporary total disability on the opinion of the non-MPN physician, Dr. Nario.
In deciding the case, a majority of the WCAB commissioners (Joseph Miller, James C. Cuneo, Deidra E. Lowe and Alfonso J. Moresi, with separate concurring and dissenting opinions from Frank M.Brass and Ronnie G. Caplane) take a hard line.
Where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and may not be relied on.
In a blow to the economic model of many of the non-MPN providers, the Valdez case indicates that the employer and insurer are not liable for the cost of non-MPN reports.
To reach this result, the majority makes several key points.
First, they note that workers can change doctors within the MPN and can invoke a multi-level appeal process within the MPN.
Second, they note that Labor Code 4061 and 4062 are QME process remedies where a party disputes determinations regarding medical treatment and diagnosis issues.
Third, they distinguish Labor Code Section 4605 and 5703(a) sections which appear to allow workers access to consulting or attending physicians at the worker's expense.
In a direct retort to Caplane's dissent, the majority notes that
"It is those applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and challenge diagnosis or treatment determinations within the MPN, and to dispute temporary or permanent disability opinions under sections 4061 and 4062 outside the MPN, who have removed themselves from the benefits provide by the Labor Code."
I'll be providing further analysis and reaction to this decision in a post in the next few days. Stay tuned.
Meanwhile, here is a pdf version of Valdez vs. Warehouse Services (2011):
http://www.dir.ca.gov/wcab/EnBancdecisi ... aldezE.pdf
Tuesday, April 19, 2011, 10:29 PM - Political developmentsAlthough worker fraud busts are sexier, employer fraud is probably costlier.
Studies have shown that employer workers' comp fraud in California is huge, as employers either misclassify employees or go without insurance altogether. This unfairly burdens honest employers, who then are at a competitive disadvantage.
Prior posts on this were "It's the Employer Fraud, Stupid" Part One:
http://www.workerscompzone.com/index.ph ... 670342ae49
And a later post, "It's the Employer Fraud, Stupid" Part Two:
http://www.workerscompzone.com/index.ph ... 818-110358
Now the legislature is poised to tighten some loopholes regarding sofflaw contractors.
A bill carried by Democratic Assemblyman Bill Monning, AB 397, would require employers to provide proof of workers' comp insurance when renewing contractor licenses with the Contractors State Licensing Board.
Although this would not solve the problem of unlicensed contractors, it would likely cut down on workers' comp fraud by licensed contractors.
Here is the current proposed text of the bill:
"SECTION 1. Section 7125.5 is added to the Business and 2 Professions Code, to read: 3 7125.5. (a) At the time of renewal, all active licensees with an exemption for workers’ compensation insurance on file with the board, submitted pursuant to subdivision (b) of Section 7125, shall either recertify the licensee’s exemption by completing a recertification statement on the license renewal form, as provided by the board, or shall provide a current and valid Certificate of Workers’ Compensation Insurance or Certificate of Self-Insurance,
whichever is applicable. (b) The license shall not be renewed unless a licensee with an 1exemption for workers’ compensation insurance on file with the board recertifies the exemption status or provides a current and valid Certificate of Workers’ Compensation Insurance or Certificate of Self-Insurance in conjunction with the license renewal. (c) If the documentation required by subdivision is not provided with the license renewal but is received within 30 days after notification by the board of the renewal rejection, the registrar shall grant a retroactive renewal pursuant to Section 7141.5 back to the date of the postmark of the otherwise acceptable renewal. A renewal that is still incomplete for any reason after 30 days after notification of rejection shall not be eligible for retroactive renewal under this subdivision.
Co-authored by Republican Tom Berryhill, the bill appears likely to make it to the Governor's desk later this year.
Here is the Assembly legislative analysis of the bill:
"1)Rationale . This bill, sponsored by the Contractors State
License Board (CSLB), is intended to create a system for the
board to maintain a list of active workers compensation
exemptions. Under current law, a licensee could have an
exemption certification on file for years without needing to
confirm that the exemption is still an accurate representation
of the licensee's status. This bill requires licensees to
recertify their exemptions each time their licenses are
" 2)Background . The CSLB within the Department of Consumer Affairs
(DCA) licenses and regulates more than 300,000 contractors
under the Contractors State License Law.
All licensed contractors must carry workers' compensation
insurance and file proof of coverage with the CSLB unless they
receive an exemption. A contractor who has no employees and
has filed a statement with the CSLB certifying that he or she
has no employees and does not hold a C-39 roofing
classification license is exempt from carrying workers
This is another good bill which deserves bipartisan support.