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
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