Saturday, May 14, 2011, 08:00 AM - Understanding the CA WC systemAs a lawyer representing injured workers' I've met all kinds of colleagues over the years.
Some of my colleagues came to the practice after being union organizers, social workers, criminal defense attorneys, union-side labor lawyers, or court reporters. Some did comp insurance defense work, tired of it, and decided to help workers. Some, like me, stumbled upon this niche, not really planning for a career doing it.
It's interesting to see how colleagues frame their mission as an comp attorney representing applicants.
Dirk Stemerman of the Monterey/Salinas firm of Rucka, O'Boyle, Lombardo & McKenna has written a noteworthy piece on being a workers' comp lawyer for the Monterey County Herald. Here, in quotes, is Stemerman's piece in its entirety:
"One hundred years ago this month, Wisconsin instituted America's first workers' compensation law. California followed two years later. The contract with California's workers was created as an employer protection as workers surrendered the right to sue employers for work injuries in exchange for guaranteed benefits such as medical treatment and disability payments."
Stemerman says "When I tell people that I am a workers' comp lawyer, reactions vary from, "Oh God, that's horrible" to "Oh, you actually help people." Often, I encounter the individual ready to tell me their anecdotal story of the time they encountered an injured worker and how they just know that person was malingering."
Stemerman notes "I help people who are injured on the job. Some are more injured, some less so. What they have in common is that they must traverse the minefield of workers' comp.While most injured workers recover and return to work, a happy ending eludes a significant minority. Some lose their homes. Others lose their families. Often, they lose the ability to perform the only job they've ever known. Telling a lifelong roofer, nurse or farmworker that they'll get a couple of hundred bucks a week doesn't seem to put them at ease when they ask the recurrent dreaded question: What am I supposed to do now?"
Stemerman observes "Many issues employees face after suffering an industrial injury permeate into other areas of law. Questions arise concerning leaves of absence, health insurance, medical treatment, Social Security, job retraining, modified return-to-work issues, harassment against employees and, ultimately, job termination issues.
On the Job seemed like a fitting title for this column because my clients are real working people. I see many of the challenges they face on the job after an injury. I am in the proverbial trenches struggling daily against moneyed workers' comp insurance companies. But while my loyalties may be slanted, in my job I often see where employers err, and my hope is that this column may help prevent a few potential employer blunders."
Continuing, Stemerman says "I am reminded of a recent situation where an employer unlawfully attempted to retroactively classify an employee's leave under the Family and Medical Leave Act. This slip-up resulted in my client receiving additional protected leave from work."
Stemerman points out that "Under FMLA, an employee working for an employer with more than 50 employees within a 75-mile radius of the worksite may request up to 12 weeks of unpaid leave in a 12-month period for a "serious health condition" requiring "continuing treatment by a health care provider. The employee must have worked at least 1,250 hours in the 12 months immediately preceding the leave. The serious health condition can concern a parent, spouse or child.The employer must inform the employee that they are eligible for FMLA leave if an employee is using sick or vacation leave. They must inform the employee in writing that sick or vacation paid leave is being exhausted and that this leave will be counted as FMLA leave.The employer is required to hold the employee's job and continue providing any group health benefits. It is always the employer's responsibility to designate leave, whether paid or unpaid, as FMLA leave."
This op-ed piece by Stemerman is a good lesson in how applicant attorneys provide a level of service that is often unappreciated by some in the system.
Some workers' comp judges, think tanks folks, and some in labor movement officials seem to have a hard time grasping the concept that lawyers, through issue spotting and advisory functions, channel workers to a range of legal remedies and solutions to workplace problems
Stemerman's article is a good retort to some of that skepticism.
Thursday, May 12, 2011, 10:33 PM - Political developmentsPerhaps this year is the year.
During the Schwarzenegger years, the governor repeatedly vetoed bills that would have outlawed discrimination in apportionment determinations in workers' comp.
That anti-discrimination concept, currently embodied in AB 1155, may well face a better fate during the Brown years. Today the bill passed out of the California Assembly on a 44-22 party line vote.
Sponsors of the bill include many of the current heavy hitters under the Capitol dome: the bill was introduced by Assembly Members Alejo, Roger Hernández, and Lara . The principal coauthor is Assembly Member Charles Calderon and coauthors are Assembly Members Allen, Ammiano, Beall, Carter, Cedillo, Dickinson, Eng, Fong, Furutani, Hueso, Ma, Mendoza, Monning, Perea, Skinner, Swanson, and Williams
as well as coauthors Senators Hancock, Leno, Rubio, and Steinberg.
AB 1155 would forbid apportionment discrimination based on age, sex or race.
The issue arises because current law requires QME physicians to make an approximate determination of the portion of disability caused by the industrial injury. The goal of the bill is to prevent factors of age, race or sex from playing any part in that determination.
The legislative analysis of the bill notes as follows:
"SUMMARY : Prohibits discrimination on the basis of specified
protected classes for purposes of apportioning permanent
disability. Specifically, this bill :
1)Prohibits discrimination on the basis of race, religious creed,
color, national origin, age, gender, marital status, sex or
genetic characteristics in the process of apportioning medical
causation for purposes of determining an employer's liability
for the permanent disability of an employee injured on the job.
2)Provides that a workers' compensation claim shall not be denied
because the worker's injury or death was related to one of the
protected classes noted above.
3)Defines "genetic characteristics" by citation to the life and
health insurance anti-genetic discrimination law that has been
in effect and used by insurers for a number of years.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits for workers who are injured on the job, including
payments to compensate an injured worker for the permanent
disability caused by an on-the-job injury.
2)Establishes a formula that is used to determine the extent of
permanent disability, which is expressed as a percentage, and
compensates the injured worker based on the percentage to
which he or she is permanently disabled
3)Allows a permanent disability to be "apportioned" to the various
causes of the disability so that an employer is only liable for
the portion of the disability attributable to employment by that
4)Requires a physician, when making a report on permanent
disability, to make an apportionment determination by providing
an approximation of the percentage of the disability that is
caused by the injury at work, and an approximation of the
percentage of the disability that is caused by other factors,
whether industrial or nonindustrial, and whether occurring
before or after the workplace injury."
Opponents of the bill fear that the bill will result in increased workers' comp costs.
But that's hard to quantify, and the impact of this bill may be largely symbolic in most instances.
Yet, many attorneys in the trenches have seen doctors apportion to "age", to "femininity", or to characteristics which seem racially based.
The bill would largely put a stop to discrimination against workers based on their immutable characteristics.
Under current law, there have been attacks on what seemed to be gendered-related apportionment. An earlier post I did on the Vaira and Fitzgerald cases can be seen here:
http://www.workerscompzone.com/index.ph ... 204-235850
This bill would make such discrimination explicitly illegal. If opponents don't think discrimination in apportionment is such a problem, then why the concern about the bill?
The current text of the bill is here:
http://www.leginfo.ca.gov/pub/11-12/bil ... sm_v97.pdf
http://www.facebook.com/pages/Boxer-Ger ... 8096336579
Tuesday, May 10, 2011, 10:01 PM - Political developmentsThere are few groups other than firefighters who are as popular as nurses.
In California, nurses have become an important political force.
Nurses were one of the groups who took the lead in Democratic party efforts to challenge the gubernatorial campaign of Meg Whitman. Nurses had a bus that traveled the state, dogging the "Queen Meg" campaign.
Hundreds of nurses picketed Whitman's Atherton home.
The nurses are now backing Assembly bill 375,carried by Nancy Skinner of Berkeley.
That bill would apply to hospital employees who provide direct patient care in acute care hospitals. AB 375 would define injury to make it presumed that back or neck injuries, infectious diseases transmitted by blood, and MRSA staph infections are work related, arising out of and in the course of employment.
In the case of bloodborne infections, the presumption would be extended to a hospital employee following termination of service for a period of 180 days, commencing with the last date actually worked.
For neck and back conditions, the presumption would be extended to a hospital employee following termination of service for a period of 90 days, commencing with the last day actually worked.
The presumptions would be disputable and could be controverted by other evidence, "but unless so controverted, the appeals board shall so find."
Firefighters and police officers have a presumption that cancer is work related (Labor Code 3212.1). Certain public safety officers have presumptions where there is "heart trouble". Others, such as the California Highway Patrol, have presumpions that pneumonia is work related (Labor Code 3212.3). UC Fire Department employees share some of these presumptions, as well as a presumption that hernias are work related (Labor Code 3212.4).
Sherriff department employees and police and fire employees have a presumption that blood-borne infections or MRSA are work related (Labor Code 3212.8)
And peace officeers, probation officers, DA investigators and firefighters who contract meningitis are presumed to have acquired it at work (Labor Code 3219.9).
Moreover, Lyme disease is presumed industrial for certain specified peace officers (Labor Code 3212.2).
Clearly there is legislative precedent for extending presumptions to groups, though in most all these cases it is extended to public safety officers.
A similar bill was proposed in 2010, AB 1994. That bill survived one Assembly committee vote, but was thereafter held without further action.
This year, AB 375 passed from Assembly Insurance on April 13 on an 8-4 vote. The bill is now at Assembly Appropriations, where it was held last year.
Here is a link to the legislative analysis on the current version of AB 375:
http://www.leginfo.ca.gov/pub/11-12/bil ... _comm.html
Unsurprisingly, there is stiff opposition, particularly from some of the public entity hospitals and clinics. Here is a summary of the debate surrounding the bill in a piece from the San Francisco Examiner, titled "Expanding Workers' Comp Benefit to Nurses Could Cost San Francisco":
http://www.sfexaminer.com/local/2011/05 ... ld-cost-sf
Currently, it's unclear whether the Brown administration plans to support the bill.
Here is a link to the 2010 bill, AB 1994:
http://www.leginfo.ca.gov/pub/09-10/bil ... sm_v98.pdf
Saturday, May 7, 2011, 02:45 PM - Political developmentsThe results are in on an analysis of the brain All-Pro Dave Duerson.
Duerson, who was a standout safety for 3 NFL teams over an 11 year career, committed suicide earlier this year. Shooting himself in the chest, he left a note asking that his brain be analyzed.
Duerson himself expected that he had neurologic brain damage due to repeated football-caused brain trauma.
This week researchers at Boston University's Center for the Study of Traumatic Encephalopathy confirmed that he did indeed have signs of trauma-caused brain disease. The condition is called CTE, chronic traumatic encephalopathy.
It's a condition that has often been observed in boxers. Boxing champion Micky Ward, on whom Mark Wahlberg's character in "The Fighter" was based, has pledged to give his brain to Boston University's research center.
In the last few years there has been increasing concern about brain trauma, with a number of prominent players experiencing concussions. Quarterbacks who had concussions in 2010 included Aaron Rodgers
(Green Bay Packers), Jay Cutler (Chicago Bears) and Matt Hasselbeck (Seattle Seahawks).
The list of prominent players thought to have concussion related brain disease has been growing.
Meanwhile, players are bigger and the league has had a problem with overly aggressive hits.
An interesting but sad coda to all of this is that Duerson himself was a trustee of an NFL disability plan. In that role, Duerson voted on disability claims filed by other players.
The NFL is in turmoil at the moment over a recent lockout by the owners. For more information about the background issues behind the lockout, look here:
So at the moment there are many issues the players and the league face. But the issue of how to deal with the issue of trauma-induced brain disease is one that will not soon go away.
For an article that highlights some of the shortcomings of the league's current disability plan, you can see this article by Alan Schwarz in The New York Times, "Duerson's Case Highlights the Limits of the NFL's Disability Plan":
http://www.nytimes.com/2011/05/05/sport ... amp;st=cse
Here's the link to the Boston University research program for brain trauma:
Wednesday, May 4, 2011, 10:00 PM - Political developmentsA bill to loosen the cap on how long some disabled workers can draw temporary disability benefits advanced in a California Assembly committee today.
The bill, AB 947 (Solorio), would add injuries that require treatment that cannot be medically completed within 104 weeks to a list of specified conditions that can qualify for a longer period of disability payments.
Under current law, a worker injured after January 1, 2008 is potentially eligible for up to 104 weeks of temporary disability benefits over a 5 year period. There are exceptions which allow up to 240 weeks of temporary disability over a 5 year period in specified circumstances.
Those circumstances are for amputations, severe burns, acute and chronic Hepatitis B and C, HIV, high velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis and "chronic lung disease".
Sufferers of those conditions are no doubt worthy of careful consideration from the system. But the gap between their special dispensation and the limitations on TD for other severely disabled workers doesn't pass the "smell test" of fairness.
Workers lost significant legitimate rights in the 2004 reforms. Aside from the loss of free choice of treating physican, nothing riles disabled workers and unionists as much as the arbitrary cap on TTD benefits.
Here's the problem, laid out in a frequently occurring scenario....
The worker falls off a ladder at work. For a while the occupational health doctor resists doing anything but physical therapy. After 2 or 3 months an MRI is performed, revealing a large herniated disc. After several months of utilization review wrangling over treatment referrals, the worker gets to a spinal surgeon, who urges a go slow approach for another several months.
When the pain becomes intractable, the worker's orthopaedic surgeon recommends surgery. The carrier disputes the spinal surgeon.
The parties go through the spinal second opinion process, and the spinal second opinion recommends a fusion. By the time it is scheduled the worker is about a year downstream.
Unfortunately, the fusion does not heal properly. After prolonged convalescence and therapy, it is determined that the fusion is not solid.
The worker needs a re-do of the fusion. But the problems are multiplying. He still has sciatic type leg weakness, and his leg gives out, causing him to fall and rupture many knee ligaments.
Now he's facing 2 surgeries, a major knee reconstruction and a fusion.
He's past the 104 weeks of TTD. Pretty soon he's past the additional help that EDD provides through its state disability benefits program.
By that time his problems are legion. If he wasn't depressed before, he is now. There are marital problems. Financial problems. It's likely that his health insurance expired. There's no money.
And no more TTD after those 104 weeks.
AB 947 (Solorio) would address this problem.
The vote the Assembly Insurance Commmitte today was 8-4, Voting yes were Democratic Assembly members Jose Solorio (D-Anaheim), Chuck Calderon (D-Montebello), Wilma Carter (D-Rialto), Mike Feuer (D-Los Angeles), Mary Hayashi (D-Castro Valley), Nancy Skinner (D-Berkeley), Norma Torres (D-Pomona), and Bob Wieckowski (D-Fremont).
From here the measure will go to the Assembly floor. It's likely that the bill will wind up on the Governor's desk later this summer.
Here's a link to the current text of the bill:
http://www.leginfo.ca.gov/pub/11-12/bil ... sm_v97.pdf
And here's the current Assembly analysis:
http://www.leginfo.ca.gov/pub/11-12/bil ... _comm.html