Friday, May 30, 2008, 12:52 AM - Political developmentsMaybe the apocalypse is near, after all.
Monster earthquakes in China and typhoons in Southeast Asia. Several men attacking Stonehenge to chip off part of the rocks. Bush's press secretary turning on his old boss, in service of "the truth" or "the big book advance". Carrie from "Sex and the City" getting married. Radio talk jock Michael Savage playing music from the group "Dead Kennedys" in celebration of Ted Kennedy's brain tumor. And they're ceasing the manufacture of Polaroid cameras.
You can hear the footsteps of the 4 Horsemen.
If you're a Reep, add to that the sick leave bill (AB 2716), which passed out of theCalifornia Assembly on a party line vote, with Dems in favor. After all, the Republican mantra has been for less regulation and no new mandates.
Mandated paid sick leave? A job killer, according to the California Chamber of Commerce.
But what's the fuss all about? If a business has 10 or more employees, workers would get up to 9 paid sick days per year. The paid sick days would be up to 5 per year for smaller firms. Sick leave would accrue at one hour for every 30 hours worked. There would be a 90 day waiting period for new employees before they could accrue sick time.
Even though he hasn't announced a position, it's likely Governor Schwarzenegger will veto AB 2716 (I'm assuming it will make it through the California Senate). After all, Schwarzenegger has hewed to the Cal Chamber's anti-"Job Killer" agenda in every instance.
This bill has good policy aims. Workers do sometimes come to work sick, infecting other workers in the process. So there's some overall benefit to having sick workers actually stay away from the workplace. Most people can recall the torture of being next to a sneezing, feverish co worker and the attendant anxiety that provokes for one's own health.
And in a humane economy, employers need to factor in reasonable compensation for workers, knowing that some amount of illness is inevitable. Overall, the bill advances the notion of a healthier workplace.
But it does add costs for some employers who do not provide paid sick leave. The bill would be the first state-mandated program in the country. Opponents cite fears that business will leave California. It's an argument used by them to advance the notion of comp reform several years ago. Evidence on the issue is mixed, and anecdotal.
Would this bill have ramifications for workers' comp? It's hard to predict, but it's possible that the law might discourage some comp claim filing. Conceivably, some workers might cover their need for paid time off as illness rather than go through the hassle of filing a comp claim.
Here's the Sacramento Bee article on the bill, carried by Assemblywoman Fiona Ma of San Francisco:
To see the bill's text and history, look here:
I'll be in Shell Beach for a few days at the State Bar Workers Comp Executive Committee meetings.
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Tuesday, May 27, 2008, 05:21 PM - Political developmentsEarlier today the California Senate voted in favor of SB 1717, the PD increase bill being sponsored by Senate Pro Tem Don Perata. In voting for the bill, the Senate clearly rejects the approach embodied in the recent DWC benefit increase proposal.
Should California's disabled workers be satisfied with the Schwarzenegger approach to raising PD? No, and here's why, as set forth in a letter to Carrie Nevans from the President of the California Applicants Attorneys Association, Sue Borg:
DWC Forum - Permanent Disability Rating Schedule
From Voters Injured at Work, here's more about today's Senate vote:
Release--SB 1717 Senate passes
SB 1717 is probably headed toward a veto on the governor's desk. Whether the governor is willing to compromise on his DWC proposal (possibly as a trade for other items) isn't clear. There have been rumors that business interests might trade higher workers comp benefits for statutory relief from wage and hour litigation over meal and rest breaks. Whether this is industry's goal and whether this is non-negotiable from labor's standpoint remains to be seen. And maybe there are other policy tradeoffs being discussed "under the radar" in what could be a wacky legislative session dominated by budget issues.
Billy Beane, the wunderkind general manager of the Oakland A's, has shown time and time again a knack for putting together complex trades that benefited his baseball club. In politics, Schwarzenegger has shown little knack for grand bargains to advance broader legacy goals he may have.
Monday, May 26, 2008, 04:18 PM - Political developmentsHappy Memorial Day to my readers.
The latest thing I've seen about comp is today's Los Angeles Times piece by Marc Lifsher on the proposed comp PD increase. You can see Lifsher's article here:
http://www.latimes.com/business/la-fi-c ... 0933.story
As spring turns to summer we will soon see the California Supreme Court unveil its ruing in Sandhagen (on UR procedures), and the 1st District Court of Appeal will be issuing a ruling in Jose Facundo-Guerrero v. WCAB (Nurserymen's Exchange), a case which will clarify the constitutionality of the 24 visit chiropractic cap enacted in 2003 via Senate Bill 228. Important WCAB rulings on the validity of the 2005 PD schedule and apportionment methodology are still awaited.
But back to Memorial Day.
It's a time I often take to remember my Grandfather, who survived the battle of Verdun, France during WWI. The WWI generation has essentially passed, with only a handful of surviving veterans from that terrible war.
I have pictures of him, a Cavalry lieutenant, riding his horse. And photos of all his buddies disembarking at one of the French ports, a far cry from the canvas tents of Fort Jackson, South Carolina. As the war ended he snapped grainy photos of the Eiffel Tower, the Arc d'Triumphe, and a damaged Rheims Cathedral.
His generation fought a bloody, grinding trench war, only to be followed a couple of decades later by another nightmarish world cataclysm.
Boomers later essentially shut down the draft. Wars never went away, but strategies changed. What we were fighting for-and why-became harder to explain. Even defining mission goals-and victory-became more difficult.
It's puzzling to consider what my grandfather would have thought of the current military. I doubt he could have imagined the outsourcing of war to military contractors that we're now doing. In Iraq-and other hot spots with a U.S. presence-many of the key functions are being done by off-the-books private contractors. These contractors often operate by a different set of rules of engagement than our official military.
Congress has struggled to get accountability over these contractors. Or even to find out what they're doing.
When injured, these contractors have claims under the War Hazards Act.
Given the nature of their work, the volume of cases heard by the U.S. Department of Labor will be heavy.
Perhaps some of them have pursued California comp claims (if they were hired in California), but if so I'm not aware of that.
What is outsourced to these workers? Logistics, security, paramilitary and intelligence functions. Intelligence?
Here's a link to an interesting NPR interview on the Terry Gross "Fresh Air" program where Gross interviewed investigative journalist Tim Shorrock. Shorrock's book, "Spies For Hire" details the continuing advance of private contractors into the national security apparatus of the U.S. government.
http://www.npr.org/templates/story/stor ... d=90411856
Conspiracy theorists love this stuff. But they may be right. Shorrock makes a good case for drawing some bright lines between career civil servants and outsourced contractors when it comes to intelligence gathering and sensitive missions.
Wednesday, May 21, 2008, 10:21 AM - Political developments"Going postal" is now a part of the American lexicon.
It would be nice to think that workplace violence is a problem that will lessen as we head further into the 21st century. Think again.
What caught my eye on Monday was a front page article in the San Francisco Chronicle by Chronicle staff writer Nanette Asimov. The title?
"Violence suspensions signal trouble in the schools".
The students Asimov writes about are part of California's future work-force pool. Those who aren't eventually working will be customers of the state's employers. It's a chilling article.
Asimov analyzed state school records, finding that 6 out of every 100 students was suspended last year for drugs or violence. There were more than 332,000 suspensions. More than a third op the state's schools had violence-suspension rates of at least 5%.
185,000 suspensions related to physical injury of another person.
Asimov uncovered all the stats. From firearms and explosives (16,302 suspensions) to 505 for selling the prescription drug Soma. There were 968 terror threat suspensions.
Perhaps this shouldn't surprise us after the Columbine and Virginia Tech massacres. And many of us live in metro areas where there are
major gang problems and where gangsta culture is popular. Snitching is seen as a cardinal sin (memo to Mr. Obama: spend some of your political capital in a bully pulpit address to young folks and minorities addressing the bankruptcy of gangsta culture and the anti-snitch culture).
Many innocent students must study in an atmosphere of intimidation.
Are we rearing a generation of future workers that will have trouble playing by the workplace rules? The issues of schools and the workplace ultimately become intertwined.
School funding in a time of whopping budget deficits is a red hot topic in Sacramento now. Sadly, I see few politicians coming up with solutions which will transform the learning climate in many of the state's schools.
It's not a liberal vs. conservative issue. It's an issue vital to the future of California's workforce.
You can see the Asimov article by clicking here:
http://www.sfgate.com/cgi-bin/article.c ... &type=
Sunday, May 18, 2008, 05:31 PM - Political developmentsIf global warming in the Arctic continues apace, it looks like polar bears are headed towards extinction.
Scientists estimate that of the estimated 10-30 million plant and animal species on the planet, that as many as 50,000 are becoming extinct each year due to human and environmental factors.
In the California workers' comp world, we've seen extinction up close over the years.
The following are extinct (or close to it) in comp. Thermograms. Chymopapain injections. Backyard hot tubs as therapy. Weekly chiropractic sessions for years on end. Live medical testimony. Board medical examiners. Medical treatment mills that were "presumed correct". Sub rosa films and VCR tapes. California based comp insurers (well, maybe that's made a small comeback). Billboard advertising by comp lawyers. Marketeers with Dom Perignon and stretch Hummer limos at comp conferences.
Good riddance to most of it.
Will we see other extinctions over the coming few years?
It's hard to know what will become extinct, but there are some likely endangered species.
Pre-SB 899 legislators are an endangered species. Yes, some are moving from the Assembly to the Senate or vice versa. But due to term limits, the number shrinks every year. That means a lack of institutional
memory about the comp system as it existed before SB 899 as well as a collective ignorance regarding the process by which SB 899 was enacted.
The 100% case is an endangered species. Under the AMA's restrictive impairment system with the limitation of combined disability charts, you'd have to be dead to get to 100% even in many catastrophic cases, except where the statute presumes permanent total disability. The unknown is whether under Costa applicant attorneys will manage to break through the AMA ceiling for severely disabled workers.
Voc rehab counselors. There are some differing views among attorneys as to whether vocational rehab for pre 1/1/04 cases survives after 1/1/09. In any case, it's a benefit headed toward extinction. And with it go the vocational rehab counselors and other service professionals that did testing and training. A handful will remain behind as expert witness consultants in labor market and diminished future earning capacity issues in "Costa" cases.
Not extinct but endangered is the unaffiliated doctor specializing in workers' comp. Medical provider networks have taken much of the business from many of these doctors. And as doctors unaffiliated with MPNs retire, it's not likely that there will be many doctors wanting to enter that type of practice.
Recent years have seen expansion of doc-in-the box groups that hold themselves out as having "offices" in every nook and cranny in California. QME regulations are being drafted which may tighten up on this practice, which essentially games the QME system. Depending on the strength of the regs, it's possible that the traveling doc-in-the-box
groups may be less viable. Among other things, they may be facing the need to make themselves available for depositions in the locations where the exams took place.
Workers' comp psych treatment is another endangered species. Even if an insurer is willing to authorize psych treatment, ever try finding a psychiatrist willing to treat a workers' comp case. In many areas of California it's simply impossible. In major metropolitan areas it may be easier to find a psychologist to do the counseling, but unless the psychologist has contacts with a medication management psychiatrist, it's an uphill project to find a psychiatrist.
The Subsequent Injuries Fund isn't extinct, but will likely be used much less frequently. Under AMA guidelines, far fewer workers hit the Labor Code Section 4571 70% overall threshold or the industrial component 35% baseline. Moreover, with more attempts to apportion under Labor Code 4663 and 4664, workers may see deductions from awards for
non-industrial "causes" but be unable to collect from the SIF because the condition was not "labor disabling" prior to the subsequent industrial injury. Under the 1957 Bachrach case (SIF v. IAC) (Bachrach) 147 Cal. App. 22 818 , the existence of a non-disabling pathological condition is not sufficient to justify entitlement to SIF benefits. And per Franklin v. WCAB (1978) 79 Cal. App.3rd 224, a retroactive prophylactic work restriction will not support SIF liability. Bottom line, it will be harder for workers to get to the SIF promised land.
Will lawyers be extinct ? No. An endangered species? To some extent, depending on many circumstances. We've already seen shrinkage in the "comp law community" on both sides of the fence. As some lawyers retire or exhaust their inventory of pre-SB 899 cases, there will be further shrinkage. I'm told that a lot of the defense firms out there are "treading water". Perhaps the remaining attorneys will be working on fewer cases of more seriously injured folks. Whether those most endangered are in large firms for defense and applicant, or whether the solo folks (some of whom can operate with extremely low overhead) are the ones who will survive best or have the most trouble, isn't clear.
Also headed for endangered status are UR and bill review groups that depend for their profitability on incentive arrangements reflecting how much they can cut costs to justify their fees. Legislation outlawing these practices is likely to come from Sacramento later this year.
Some SCIF personnel may be on the list as well. SCIF's market share is down by over half from where it was in 2004, yet the carrier still is amply staffed. It's not clear what the new SCIF leadership plans to do about cost cutting.
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