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
Tuesday, May 18, 2010, 09:09 AM - Political developmentsFor some years I've served as a judge pro-tem at the Oakland WCAB.
Yesterday was my first experience as a pro-tem since the introduction of EAMS.
It has always amazed me how little is in the WCAB paper files (the "legacy files"). Disputes on a case may have been raging, with mountains of medical reports, utilization reviews, billing disputes and so forth. Yet, the board file often remains placid, devoid of indication that anything much is going on.
With EAMS, the judge has no actual file. The electronic file is there to the extent documents have been scanned into it.
Navigating within EAMS for a first timer wasn't actually that hard.
But the view from the bench made me appreciate the situation our judges find themselves in.
Without a paper file they've got to hunt and click their way to an understanding of what's going on in a file.
It's a different process. Future generations of judges, who grow up reading everything online and who grow up keyboarding and mousing will probably have an easier time. For many of the current judges, accustomed to managing paper files and adept at reading and marking up reports, the system has got to be a challenge.
On another note, I'll be commenting on recent DWC and CWCI studies. And the gubernatorial primary is heating up. The nonpartisan poll from the Public Policy Institute of California will be out in a few days. Meanwhile, the Commish is hitting eMeg with a charge that she's all about the money (?who knew?) and that she failed to control porn at eBay. Here's the ad:
http://www.sfgate.com/cgi-bin/blogs/nov ... y_id=63770
Sunday, May 16, 2010, 10:02 PM - Political developmentsThe problems with the state budget will suck all the air out of the Capitol this year. No one expects any significant workers' comp legislation this year.
To understand the magnitude of the budget shortfall and how difficult the choices will be, check out "The Anatomy Of A Budget Shortfall" by Daniel Weintraub on HealthyCal.org:
http://www.healthycal.org/the-anatomy-o ... tfall.html
Friday, May 14, 2010, 08:43 AM - Political developmentsAfter today's budget revisions are unveiled by Governor Schwarzenegger, there will be a lot of unhappy campers.
California is back in the hole, big time. The deficit may be over $18 billion.
We're back where we were a year ago.
Consider the last year. In the workers' comp world we've seen SCIF employees and WCAB employees struggle in the courts to be exempted from furloughs.Morale suffered, and most comp system stakeholders felt it made no sense given that the comp system is supposedly user funded. Indeed, employer assessments that fund the comp system and other labor regulatory agencies rose at a time that WCAB service was being cut back.
Most of the applicant and defense bar adapted, scheduling depositions and informal settlement meetings on furlough Fridays. Lawyers and lien claimants you could never otherwise reach might be found in their office on the furlough Fridays.
But claimants had to wait longer for hearings. And many WCAB staffers and judges were economically stressed.
With this coming budget cycle the Governor will be talking about imposing direct pay cuts on state employees, including those at the DWC and WCAB. SCIF attorneys have been notified that they will be losing their employer-provided cars.
Whether California's situation is not like Greece:
http://www.californiaprogressreport.com ... =node/7749
http://www.nytimes.com/2010/05/14/opini ... ugman.html
or whether it is like Greece:
http://www.sacbee.com/2010/05/12/274406 ... 20Politics
............the reality is that we have a Governor and a legislative minority unlikely to agree to any significant revenue enhancements (taxes).
So look for more pain today.
Here's the assessment on where things stand from Jean Ross of the California Budget Project:
http://www.calbuzz.com/2010/05/jean-ros ... as-future/