After the Court of Appeals holding in Ogilvie, many of us have been waiting to see what the WCAB would do.

How would the WCAB interpret the 1st DCA's Ogilvie decision?

In its decision the Court of Appeals rejected the mathematical formula that the WCAB had developed for possible rebuttal of the PD schedule but outlined 3 possible methodologies fro rebuttal of the schedule.

One method? A party could show a factual error in the application of a formula or the preparation of the schedule.

Another method? A party may prove that medical complications of the injury are not captured in the schedule.

But it is the third method that has drawn the most interest. A party may attempt to rebut the PDRS by demonstrating the effect of the injury on the employee's rehabilitation. In outlining this method, the Court of Appeals noted no meaningful difference between the terms "diminished future earning capacity" and "ability to compete in the open labor market".

But the Ogilvie court remanded the case back to the WCAB for further development of the record.

Subsequently the Ogilvie case itself was settled, so there was never to be another review of the Ogilvie case by the 1st DCA.

But if the logic of the old California Supreme Court LeBoeuf decision still lives, then would that be applicable only to 100% cases, or also to cases where the worker is less than totally permanently disabled?

A recent WCAB panel decision, Dahl v. Contra Costa County (ADJ1310387) answers that question. The panel of Commissioners Frank Brass, Alfonso Moresi, and Marguerite Sweeney hold that a LeBoeuf type of analysis may be properly applied in a case involving less than 100% permanent disability when it is shown that the injury impairs the employee's rehabilitation.

Dahl was a case handled by Arjuna Farnsworth, my colleague at Boxer & Gerson.

Dahl's rating would be 59% if the PDRS was not rebutted, and the WCJ ruled that the rating would be 59%, rejecting any attempt to rebut the rating by using vocational expert testimony if the case was less than 100%. essentially, the WCJ ruled that the attempt to rebut the schedule would fail under Ogilvie unless the worker could show a total loss of earning capacity.

Not so, said the WCAB panel.

What is particularly interesting about the panel decision in Dahl is that they seem to adopt the reasoning expressed by Commissioner Ronnie Caplane in her dissent in the earlier en banc decisions of the Appeals Board in Ogilvie.

The Dahl panel quotes Caplane's dissent as follows:
"The percentage of her actual loss of future earnings as demonstrated by both parties' expert witnesses is the most accurate reflection of her diminished future earning capacity. Therefore, her permanent disability rating should be the percentage pure earning capacity of her lost future
earning capacity....."

"The method that I propose is comprehensive, analytically sound, and operationally simple. It would require vocational or other experts to estimate the injured employee's post-injury earning capacity based upon medical opinions evaluating her permanent and earning capacity had she not suffered the industrial injury, both to be determined from the permanent and stationary date through her projected years in the work force. Such expert testimony is common in marriage dissolution cases, permanent injury cases, and employment cases."

One is led to conclude that a solid majority on the WCAB now concludes that vocational expert testimony is a valid methodology to rebut the PDRS, and vocational experts can do this by assessing the percentage of diminished future earning capacity. In essence, the testimony is rebutting the entire PD string, not merely the FEC factor.

What is unclear is what future these concepts will have, as a coalition of forces wish to take this option away from workers.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

Sometimes there is a great divide between what an injured work can receive in the workers' comp system and in the civil justice system.

Being a no fault system, workers' comp was not designed to "make workers whole". Although workers' comp benefits are payable regardless of who was at fault in causing the injury, those benefits do not fully compensate for wage losses, pain and suffering, loss of enjoyment in life and other such measures of damages.

Workers injured due to the negligence of "third parties" of due to defunctive products can pursue lawsuits in civil court to seek full compensation.

So it was in a case handled by two of my trial lawyer colleagues at Boxer & Gerson LLP in Oakland, Gary Roth and John Anton.

On May 12, 2012 it took a jury in federal court (U.S. District Court in San Francisco, Hon. Maxine Chesney presiding) just 10 hours of deliberation to return a unanimous verdict and award a Brentwood man and his wife $11.4 million for injuries sustained in a vehicle accident caused by defects on a Volvo garbage truck he was driving.

The $11.4 million award includes approximately $2.4 million for future medical expenses and loss of earning capacity, $7.5 million for pain and suffering and $1.5 million for his wife's loss of consortium.

The worker was a Teamster driver operating a garbage truck for Waste Management in Livermore, Ca. when the right front hub of the truck fractured and the right front wheel fell off. The worker's injury required 3 surgeries to date and perhaps more in the future.

The lawsuit filed by Boxer & Gerson alleged that the front hub was defective and that the garbage truck manufacturer, Volvo, and the components parts manufacturer were negligent, were aware of safety issues with the aluminum hubs, and did not warn users of the danger. In addition to Volvo, which built the cab and chassis, the complaint named Consolidated Metco, the manufacturer of the aluminum front hubs, and Wittke Manufacturing, an entity that modified the truck.

At trial, the 3 defendants alleged that the worker's employer was at fault for overloading the trucks and for not noticing cracks in the hubs. But after hearing expert testimony, the jury allocated only 6% of fault to Waste Management, the worker's employer.

62% of fault was assigned to Consoldiated Metco, 30% to Volvo Truck, and 12% to Wittke. 27 witnesses testified.

Thousands of such hubs are in service in trucks across the United States.
During the trial, Attorneys Roth and Anton argued that in spite of knowledge that the hubs were unsafe, the defendants had not sought to recall the aluminum hubs or notify users of the risk of failure during use.

Tort cases like this are an extra dimension that good lawyers can pursue to help some injured workers.

The case serves as a reminder that when an accident occurs, there may be a deeper story that needs to be explored.

Why did the accident occur? Are there design failures in the tools and equipment? Were items modified or remanufactured?

In some cases looking into these things may make a huge difference to a worker who has suffered a career ending injury, a worker who might otherwise receive a pitiful workers' comp recovery under a strict AMA Guides system.

That's the great divide. Kudos to Gary Roth and John Anton for helping span the great divide in this case.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

California's workers comp market is becoming less concentrated, with 25 insurer groups having at least a 1% market share.

That's according to data compiled by the National Association of Insurance Commissioners and the California Department of Insurance.

According to a bulletin from the California Workers' Comp Institute, workers' comp premiums have grown to $7.8 billion after reaching a nadir of $6.9 billion in 2009.

CWCI attributes the reductions from a 2004 high of $16.1 billion in written premium (net of deductible credits) to "high unemployment, payroll reductions and job shifts during the recession, legislative reforms, falling claim frequency, and a soft market that kept premium rates low despite rising claim severity".

SCIF continues to have the highest premium volume, though its market share continues to be far less than it was 10 years ago. SCIF actually continued to lose market share in 2011, down to 12.9% in 2011 from 16% in 2010.

SCIF's shrinking role has been a painful experience from much of its longterm workforce, including its legal staff.

Market share gains were posted in 2011 by Hartford, Travelers, Fairfax (which acquired Zenith), Berkshire Hathaway, Liberty Mutual, Employers Holdings Groups, Zurich and Everest.

AIG (now Chartis) was an exception, shrinking a small amount.

Still, with so many carriers in the California workers' comp market, even substantial increases in premium (comparing 2011 to 2010) written by these carriers did not translate into large market share increases. For example, Hartford premium jumped 38% but its market share only inched up from 6.4% in 2010 to 8% of the 2011 California market.

Overall, this appears to be good news. A wide number of companies appear to continue to be interested in participating in the California workers' comp market.

We're not seeing an exodus of carriers. And the top 10 carriers are mostly national insurance companies (except SCIF).

Stay tuned.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

Should judges be free to mine information on social media sites that pertain to claimants?

In an era when so much personal information may be found on the internet, is it appropriate for judges to do internet research about the parties appearing in their courtrooms?

I'm not aware of any instances in which this issue has arisen in California's workers' comp system, but it is likely to be coming.

Some claims adjusters and defense attorneys now check social media sites to see if they can uncover applicant activities that are inconsistent with what is reported by doctors or the claimant.

Last year a prominent defense attorney wrote a piece entitled "I Spy for Free". He noted that much can be gleaned now from Facebook and other sites.

Stuff that in the past investigators would have had to dig up now appears "in plain view" in some cases.

But is it appropriate for judges to go outside the scope of the evidence presented in the case?

This is an issue which has been raised now in connection with Social Security hearings held by federal administrative law judges who hear Social Security Disability and SSI cases for the Office of Disability Adjudication and Review.

An article in The Washington Times by Stephen Dinan notes that:
"The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud."

"Agency officials said reviewers can’t trust information posted online, and also said the mere act of typing in queries could compromise protected private information, so they shouldn’t try to access anything."

"Social Security’s ban covers all Internet sites, including social media such as Facebook."

"But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases."

Apparently Social Security is taking the position that use of internet "information" is better left to fraud investigations of the Inspector General.

Efforts by ALJs to do investigations outside the courtroom can become a slippery slope. Perhaps judges should be allowed to look at internet material that is brought to their attention by a source.

Note that's different than the judge initiating his or her own searches.

Of course, Social Security is not adversarial, and there is no defense attorney at SSD/SSI hearings to represent the government's interest.

But to give the trier of fact wide-ranging investigatory license may start to confuse the role of the judge.

That's especially true in workers' comp, where employers and carriers are represented by attorneys who are capable of pointing out damning evidence.

The comp system should follow Social Security on this one.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

I recently settled a case that I'd handled for about eight years.

As I wrapped up some loose ends on the file, I printed out a log of "case activity".

The log was 33 pages long. There were about 800 activity entries. From the first meeting, filing the opening papers, to scanning in the settlement documents.

Entries of hundreds and hundreds of phone calls. Hundreds and hundreds of letters. Hundreds and hundreds of documents logged in or scanned.

And those are just the noteworthy calls, letters and documents. We wouldn't log or scan many of the random activities undertaken in the file.

I suspect the actual activity total was at least double if not triple.

Like a symphony played by an orchestra, there it was, laid out in the log. Notes from a receptionist, my secretary, my paralegal, our scheduler, and myself.

Responding to late checks, requests for advances, scheduling doctor appointments and depositions. Status discussions. Hand holding the applicant. Trying to explain why things happen. Explaining what may happen next. Taking information. Putting pieces of a puzzle together.
Putting out the "fires" which inevitably happen in cases.

In the workers' comp system, lawyers and judges get plenty of attention.

But in truth in many offices it is the staff that keeps the system running.

We're in the middle of what used to be "Secretaries Week", now commonly referred to as "Administrative Professionals Week".

Any office representing injured workers has a dedicated staff doing the sorts of things outlined above.

These are the workers who speak with the injured worker claimants, who hear the frustration and angst those workers voice. They are the folks who make many of the followup calls while the attorneys are in court and deposition.

It's not an easy job, but many of them do it year in and year out with aplomb. Many of them are incredibly dedicated.

They deserve our recognition and thanks. We couldn't do it without them.

Julius Young
www.workerscompzone.com
www.boxerlaw.com