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

It was smooth sailing at the legislature this week for Christine Baker and Rosa Moran.

Both easily won confirmation to their posts as head of the DIR and the DWC.

By all accounts, Moran and Baker work well together.

With reform efforts on the horizon, the political pressures on both will be substantial.

Each brings a unique background to the job of managing California's workers' comp programs. Baker has years of experience navigating workers' comp politics, dealing with stakeholder groups and policy wonks. Moran has extensive experience in the system from representing injured workers and serving as a workers' comp judge.

Congratulations to both.

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

The DWC listening tour is now over.

Yesterday I had a chance to catch one of the final sessions in Oakland.

It was interesting that the only specific mention of monetary savings I heard yesterday came from comments by SCIF's representative. SCIF claims that they project over a billion in achievable savings if certain changes are adopted.

By now it's clear that influential employer spokespeople are seeking to remove judges from making decisions about medical treatment. Apparently those stakeholders are unhappy with the current dispute resolution process.

But I'm not aware of any studies that show how this would generate savings.

And from the level of a practitioner, most treatment decisions are either dictated by UR physicians or by tie-breaker QMEs.

If numbers have been crunched on the savings that could be generated by other dispute resolution methods, I'm not aware of that. I don't believe that CHSWC has data on that issue at this time.

So this push may be philosophy driven rather than data driven.

Whatever. The push is on.

I'm told it is for some sort of IMR system. That's Independent Medical Review.

You'll likely be hearing a lot more about this. So to help you get up to speed, here is a link to a RAND report that analyzes different IMR models that could be used in California workers' comp (the HMO model, the Medicare model and the Texas workers' comp system model):
http://www.rand.org/content/dam/rand/pu ... ndixes.pdf

And here is a link to a study by the California Healthcare Foundation of the IMR program used with California healthcare plans:
http://www.chcf.org/~/media/MEDIA%20LIB ... istory.pdf

Stay tuned.

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

American culture has long touted the retirement years as "golden years".

The baby boomer generation in particular has nurtured the notion that "seventy is the new sixty". Living longer, getting cosmetic surgery, bringing our pop culture along with us as we age.

Mick Jagger and Neil Young are still rockin'.

But there is rising angst as Americans recognize that retirement security is, well...not so secure.

This is highlighted in the results of a March 2012 study by the Employee Benefits Research Institute, written by Ruth Helman, Craig Copeland and Jack VanDerhai, titled "The 2012 Retirement Confidence Survey: Job Insecurity, Debt Weigh on Retirement Confidence, Savings".

Here are the key finding of the EBRI paper:
-"Americans’ confidence in their ability to retire comfortably is stagnant at historically low levels. Just 14 percent are very confident they will have enough money to live comfortably in retirement (statistically equivalent to the low of 13 percent measured in 2011 and 2009)."
-"Employment insecurity looms large: Forty-two percent identify job uncertainty as the most pressing financial issue facing most Americans today."
- "Worker confidence about having enough money to pay for medical expenses and long-term care expenses in retirement remains well below their confidence levels for paying basic expenses."
-" Many workers report they have virtually no savings and investments. In total, 60 percent of workers report that the total value of their household’s savings and investments, excluding the value of their primary home and any defined benefit plans, is less than $25,000."
-"Twenty-five percent of workers in the 2012 Retirement Confidence Survey say the age at which they expect to retire has changed in the past year. In 1991, 11 percent of workers said they expected to retire after age 65, and by 2012 that has grown to 37 percent."
-"Regardless of those retirement age expectations, and consistent with prior RCS findings, half of current retirees surveyed say they left the work force unexpectedly due to health problems, disability, or changes at their employer, such as downsizing or closure."
-"Those already in retirement tend to express higher levels of confidence than current workers about several key financial aspects of retirement."
-"Retirees report they are significantly more reliant on Social Security as a major source of their retirement income than current workers expect to be.
 Although 56 percent of workers expect to receive benefits from a defined benefit plan in retirement, only 33 percent report that they and/or their spouse currently have such a benefit with a current or previous employer."
-" More than half of workers (56 percent) report they and/or their spouse have not tried to calculate how much money they will need to have saved by the time they retire so that they can live comfortably in retirement."
-"Only a minority of workers and retirees feel very comfortable using online technologies to perform various tasks related to financial management. Relatively few use mobile devices such as a smart phone or tablet to manage their finances, and just 10 percent say they are comfortable obtaining advice from financial professionals online."

The study noted that:
"One reason for the difference between workers’ expectations and retirees’ experience of retirement age is that many Americans find themselves retiring unexpectedly. The RCS has consistently found that a large percentage of retirees leave the work force earlier than planned (50 percent in 2012) (Figure 33). Many retirees who retired earlier than planned cite negative reasons for leaving the work force, including health problems or disability (51 percent); changes at their company, such as downsizing or closure (21 percent); and having to care for a spouse or another family member (19 percent). Others say changes in the skills required for their job (11 percent) or other work-related reasons (23 percent) played a role. Some retirees mention positive reasons for retiring early, such as being able to afford an earlier retirement (33 percent) or wanting to do something else (28 percent), but just 8 percent offer only positive reasons."

Many injured workers find themselves in the big group that retires dearly due to health problems or disability.

This is one reason why any changes to California's workers' comp system need to be crafted very carefully.

With credible studies showing a huge drop in permanent disability indemnity benefits paid to disabled workers since 2004, there are many California workers who are even less prepared for retirement than they would have otherwise been.

That's why it is important to carefully consider how a benefit increase is done. How will a benefit increase be distributed between lower end disabilities and disabilities of workers who cannot return to work?

If procedural hurdles are placed in front of workers, and impairment rating standards further tightened, will an "increase" be illusory? If disability percentages are assigned increased monetary amounts on a chart but percentages of disability awarded are compressed, how will this actually play out?

If the Almaraz-Guzman and Ogilvie cases were to be deep-sixed, how do we know that workers would not be that much further in the hole?

I have yet to see any reliable studies on these questions.

Legislators and the workers' compensation press are going to want to know more as further discussions between stakeholders proceed.

The statewide DWC listening tour has been great. Let's hope that some of the ideas that have emerged can be used in systemic changes.

But pretty soon the DWC leadership and stakeholder leaders need to start floating some of their ideas.

It's too important to emerge from a back room as a done deal at the end of the legislative session.

Here is a link to the employee benefits study. The study is replete with interesting charts and tables:
http://www.ebri.org/pdf/briefspdf/EBRI_ ... 9_RCS2.pdf

Julius Young
www.boxerlaw.com
www.workerscompzone.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