Sunday, May 30, 2010, 10:17 AM - Political developmentsAmericans like to think of ourselves as in control.
That's one reason for a largely grumpy current public mood. Technology doesn't seem able to solve the nation's worst environmental disaster in Louisiana. Jobs that seemed secure have been outsourced or eliminated.
Many neighborhoods are still gripped by foreclosures and mortgage abandonment. The border with Mexico is still porous. Companies that the average person never heard of (Lehman) and places that seem so quaint (Greece) can collapse and bring down the house of cards.
And thus we have a recipe for anti-incumbency. The perceived lack of control is also an incubator for fringe solutions from both the right and the left.
It's not surprising that there are mixed messages that get great currency. Government is too powerful. Government isn't doing enough.
I was thinking more about all this after the Los Angeles stabbing of an attorney, Joseph Rippinger. David DePaolo, publisher of Workcompcentral.com did an excellent piece, "L.A. Stabbing: With Lack of Control Comes Desperation".
DePaolo noted that he suspects the culprit "has deep emotional scars from getting lost in the jungle of workers' compensation".
Here are some of DePaolo's observations on this perceived powerlessness (his comments included in quotes):
"I see evidence of this all the time, as I’m sure many in the industry do – desperate people fed up with the “system” act out in different ways – many of these desperate people vent their anger and rage in our Forums, sometimes they send me e-mails or letters documenting their frustration with the system and desperation to get better, and sometimes they just commit suicide because there no longer is any hope. "
"Workers’ compensation has seen its share of violence from such folk – Santa Cruz attorney Jay Bloombecker murdered in 2006 by a client, SCIF attorney Louise Armstrong assaulted in a parking lot in Anaheim, defense attorney Erwin Nepomuceno beaten with a hammer by an upset applicant in front of a medical clinic."
"It would be easy to blame the Division of Workers’ Compensation for not setting tighter security protocol such as metal detectors, but the issue is not just one of security. "
"And it would be easy to just blame the injured worker and assume that these are just crazy people who would act out in some manner regardless, and just happened to choose a workers’ compensation situation due to convenience."
"But I don’t think that the blame is so easy to assign, and I think the blame goes to the heart of what is fundamentally wrong with workers’ compensation: the one person whom the system is to benefit, the one person who is in the system involuntarily, is the one person who has no control over his or her fate – people pushed to the brink of sanity and then acting out in a violent, desperate manner in an attempt to get some relief."
DePaolo continues: "Think about that – once the injured worker ends up in litigation nearly all semblance of control over his or her destiny is taken away, from being told what doctor to see, what treatment can or can not be approved, the expiration of disability payments, whether he or she can go to work, etc. The injured worker has no say during the life of the litigated claim until it’s settlement time. "
"The litigation process in California workers’ compensation is designed to remove all responsibility from the injured worker, and ergo, remove all control from the injured worker. This may not be the intent of the process, but it is the result."
"Medical control essentially rests with the employer. This modification to the system was necessary, as are most rules and regulations, because a few bad apples decided to abuse the right to medical to control so that they could unfairly profit from the system."
"And not only has the right to medical control been usurped, the method of contesting medical decisions has been removed from the injured worker’s control – it’s in the hands of utilization reviewers with essentially no right of appeal."
"If you’re lucky enough to get to a hearing about a disagreement or conflict with the case, it’s likely months before any decision is made (which again is out of the hands of the injured worker) and it is very likely that the claims administrator may still not abide by the ruling, further delaying the claim and the fate of the injured worker."
"The injured worker cannot get back to work because the employer doesn’t want a broken employee. The physician will prescribe a permanent impairment assessment, but the injured worker has no understanding of what that fiction means, or what its ultimate relation to a settlement is."
"While all of this professional activity is going on around the injured worker, months or years go by and the injured worker has been off work for so long that there isn’t any motivation as he or she spirals down into depression."
"This is no excuse for acting out or the violence that has made recent headlines. It is an indictment of the “system” – a process that is so complex, so entrenched, so lacking of humanity, that it no longer does what it was supposed to do: provide protection for the injured worker so he or she can get back to work."
"Somewhere, at some time, some one with political power and clout will figure out that the problem with workers’ compensation is workers’ compensation itself – the system no longer serves the only involuntary participant. When that happens the system will cease, an industry will shift to another profit source, and perhaps the injured worker will regain some control over his or her life. Until then, expect more desperate acts from desperate people."
Note:David DePaolo, a former workers' compensation defense attorney, is chief executive officer and editor-in-chief of WorkCompCentral.
I'd have to agree with DePaolo. Getting entangled in the "system" is very frustrating for many workers. The judges and attorneys may see it as a "comp community" but to many of the claimants its a system rigged against them. Take an individual who has underlying emotional instability, add in a dose of frustration, pain and a lack of money...voila!....sometimes you can have a dangerous brew.
This is not to say that applicant and defense attorneys, adjusters and judges treat cases with kid gloves. But it is a wake up call for us in the system to pay attention to the real forces affecting the worker.
The alleged assailant in Los Angeles had apparently tried to back out of a compromise and release he entered into as a pro per (after dismissing his attorney). Although it is difficult to back out of a settlement, the WCAB did hold a trial on the issue of whether the claimant should be allowed to back out of the settlement. The trial judge did not find the assailant's claims of bias convincing. Apparently the worker continued to write letters to the WCAB.
Some workers fixate on their cases and this appears to be what occurred when he plunged the knife into a lawyer who wasn't even involved in his case. It's a cautionary tale.
Thursday, May 27, 2010, 07:11 AM - Understanding the CA WC systemWorkers' comp sometimes has a Theater of the Absurd quality.
Eugene Ionesco, Jean Genet or Samuel Beckett could have designed this one: a cost containment effort that becomes a major cost center problem itself.
I'm referring to the increases in California workers' comp cost containment, which jumped 86% from 2005 to 2008. Over the period from 2002 to 2008, cost containment expenses jumped from 6.6% of treatment expenses to 14.7% (using first year treatment expenses as a sample
Cost containment as a cost driver! Who's afraid of Virginia Woolf, Virginia Woolf?
Cost containment as a cost driver!
These cost containment figures are documented in the recently released report of the California Workers Compensation Institute which you can find on their download page, "Medical Development Trends in Calif WC 2002-09":
Monday, May 24, 2010, 11:47 PM - Political developmentsThe workers' comp world isn't immune from senseless violence.
The latest reminder was the stabbing of a Southern California defense attorney, Joseph Rippinger, at a "lien fiesta" at the Los Angeles WCAB.
Rippinger, an attorney with Graves and Bourassa, was atttacked with a large chef's knife. The assailant apparently had a workers' comp claim but Rippinger was not involved in the claim. Like so many acts of violence, it's not clear exactly what "set off" the assailant.
Something that was said? A perceived slight? Did the assailant lash out at Rippinger (who is said to be tall) as an authority figure? Was this an act of rage toward the comp "system"? Or just a senseless act by a disturbed individual? What was the assailant's "story"?
Someone may have answers to those questions, and perhaps the truth will emerge. Rippinger is said to be recovering well.
But other attorneys have been attacked. Several years ago, Santa Cruz attorney Jay Bloombecker was shot and killed by a disgruntled client. A Southern California defense attorney was attacked by a hammer wielding claimant.
It's worth noting that those two events happened away from the WCAB district offices.
Are occasional random acts of this nature to be expected in a large and fractious comp litigation system? After all, one sees occasional media pieces on violent outbursts in the criminal court system and in divorce court. I suspect that bankruptcy and foreclosure attorneys are at risk as well.
Perhaps you remember the Robert DeNiro criminal character in the film "Cape Fear", threatening his "counselor".
Unlike Superior Courts, the California Workers' Compensation Appeals Board district offices have lax security. There are no baliffs. Some of the boards are housed in buildings that have CHP officers downstairs, and a few have private security guard contractors (the Los Angeles WCAB where the attack occurred had a private security contractor).
But to my knowledge only two boards have metal detectors, the Oakland WCAB and the San Francisco WCAB. The San Francisco WCAB is in a building that houses the California Supreme Court. The Oakland WCAB office is in a building that houses the office of the California Attorney general and many other state agencies.
The Oakland WCAB did not have metal detectors til just a few years ago. After concerns that several clients had made specific, seemingly credible threats, our office joined with several other offices in requesting those be ordered in Oakland. While those might have been supplied in Oakland eventually anyway, it always amazed me that it was not done before.
The DWC is in a financial bind, of course, and coming up with the money to buy metal detectors and security staffing is daunting, particularly in this sea-of -red -ink budget environment. In the past most, but not all of the district offices have been in state buildings. Getting security into many of those buildings may be a logistical as well as budgetary challenge.
But if we continue to see episodes like the attack on Rippinger, we'll see more pleas for metal detectors and higher security.
Do these kinds of episodes tell us something about the comp system?
if so, what? Attorney David DePaolo, publisher of Workcompentral.com thinks so. In a coming post I'll cover some of David's thoughts and my reactions.
Friday, May 21, 2010, 01:05 PM - Political developmentsThe Supremes have been busy.
The California Supreme Court has agreed to hear a case on the legality of Schwarzenegger's furloughs. The case had been brought by the union CASE, which argued that SCIF employees were exempt from furloughs.
In a way the case may be academic. Going forward, the administration's budget will probably rely on pay reductions rather than furloughs.
But there are a number of pending lawsuits dealing with the furloughs, and the Supreme Court's decision to hear the case will give direction to those lawsuits.
But for every one they giveth, they taketh one away........
While deciding to hear the furlough issue, the California Supreme Court has dodged the thorny issue of apportionment to "causes" such as lack of education and lack of English speaking skills. Those issues were at the heart of the Hertz v. WCAB (Aguilar) case.
The Supreme Court had agreed to hear the Hertz case, although arguments had not been scheduled. But the Supreme Court has now dismissed the case. As a result, the Hertz Court of Appeal decision no longer is citable as authority. Procedurally, it appears that the matter returns to the WCAB, which presumably will return the case to the trial level for more development of the record.
This may allow the board to explore further whether the applicant really could not work as a result of physical factors alone. And how other factors interacted with the physical factors. The Hertz case was an "old schedule" case (with an ability to compete in the open labor market standard) rather than a "new schedule" case (with a "diminished future earning capacity" standard).
Hertz may eventually be the test case on the issue of what "factors" of disability can be apportioned. Does California have a "perfect man" standard so that anything that makes one not perfect-such as "flaws" in literacy, intelligence, physique, and cultural background-can be used as apportionable factors?
It's a slippery slope. So it's not surprising that The Supremes decided to pass on this one for now.
Wednesday, May 19, 2010, 07:24 AM - QME processThe DWC Medical Unit has been a great source of irritation in the comp community over the past few years.
Whether you speak to adjusters, defense attorneys, applicant attorneys or even judges, there has been a sense of frustration with the Medical Unit's delay in processing QME panel requests. I've heard many complaints about how items get hung up on technicalities. Correspondence to clarify or amend requests seem to fall into a black hole, never to be acknowledged.
Attorneys were increasingly forced to take up the time of judges at the WCAB seeking orders that the Medical Unit act. In a perverse twist, the Medical Unit disciplined some QMEs for failing to meet time frames (at a time when QMEs are dropping out of the system), yet completely failed to manage its affairs to get QME panels out in a timely fashion.
The QME rules were revised, but the problems remained.
Understaffed and backed up many, many months, the DWC Medical Unit has apparently decided to do less "screening" in an effort to get caught up.
New forms have been devised. Yesterday the following forms were unveiled:
Here's the new form "Additional panel request form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_7.pdf
Here's the new form "Replacement Panel Request Form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_5.pdf