Wednesday, June 27, 2007, 06:24 AM - Political developmentsIt's hard to fathom. But under current California law, you could be fired for taking a day off to attend the funeral of a family member, spouse or domestic partner.
Why? California employees currently have no right to bereavement leave under state or federal law. The Federal Family Medical Leave Act and the California Family Rights Act do provide employees with protected leave in order to care for an ailing family member. But under those laws, the protected leave ends upon the death of the family member. Thus, under current law, an employer may legally discharge an employee for requesting or taking any leave of absence to prepare for or attend the funeral of a family member.
A worthy bill in the legislature, SB 549, would change that. SB 549, sponsored by State Senator Ellen Corbett, would allow employees the right to up to 4 days of bereavement leave. This leave would be unpaid (unless the employee used otherwise accrued vacation time, sick leave, and so forth).
SB 549 includes some protections for employers. The right to bereavement leave would not accrue until an employee has been employed for at least 60 days. Moreover, the bill allows employers to demand written verification of the relative's death so as to prevent any abuses of this leave.
We live in a time when it is trendy for politicians to claim that they are "pro-family values." This has been particularly true among conservative Republicans whose base includes a churchgoing, family-oriented constituency.
Why, then, did we see negative votes against SB 549 among many of the Republicans on legislative committees considering the bill? Are those legislators as "pro-family" as they claim? And is the California Chamber of Commerce really willing to stand up and say that business should be free to fire a worker whose loved one has just passed away? How would that position play in a family-values voter constituency?
The California Employment Lawyers Association is to be commended for their hard work on this bill. It should be a no brainer for politicians on both sides of the aisle. Let's hope the Governor realizes that this is a good pro-family bill and good policy.
Monday, June 25, 2007, 06:28 AM - Opinions and DecisionsEver experienced a scirocco?
Me neither til yesterday.
Workerscompzone is visiting Sicily. Yesterday, sudden fierce, blindingly hot winds swept through the piazza here in Taormina, knocking over vendor's carts, sending locals and tourists scurrying alike. These winds-also called tromba d'aria by a local-are North African desert winds that occasionally sweep through the islands of the Mediterranean. This region, whose history has ping-ponged between Phoenicians, Greeks, Arabs, and Romans, is accustomed to these occasional winds.
But it was with interest that I saw the scirocco that hit California workers' comp in the past few days. A California court ruled that the ACOEM guidelines (now the official standard for medical treatment in California workers' comp) are not applicable to chronic pain cases.
The case is James Laing vs. Kaiser Engineers. Mr. Laing was injured in 1987 and the issues in the case dealt with treatment issues raised many years later (note: part of the case deals with the procedures for second opinions in spine surgery cases, something I'll discuss another time).
The decision is "unpublished" for the moment, meaning that it may be of limited value as precedent in court. But the decision echoes several panel decisions from the WCAB several years ago which questioned the applicability of ACOEM to treatment of chronic pain, rather than acute (recent) injuries.
This will increase the pressure on the DWC to have viable chronic pain guidelines. Til then, injured workers may want to note this case.
Sunday, June 24, 2007, 01:11 AM - Political developmentsNormally, Workerscompzone would be at the California Applicants' Attorneys Association meetings, happening this weekend in San Francisco. I'll cover the conference gossip another time.
But this year, I had the opportunity to go to Italy. Greetings from Rome.
As I was visiting the Coliseum and the majestic ruined forums of the various emperors yesterday... the Caesars, Trajan, Hadrian, Constantine... I couldn't help but think about the workers who built this place. My firm, Boxer & Gerson, represents a lot of operating engineers and building trades workers. Construction is not easy work, and often times is very dangerous. But these Roman workers-or the slaves they ensnared to do their dirty work-must have really been put to the test. Moving tons of marble. Masonry projects that would blow your mind. Obelisks and columns that must have required unbelievable scaffolding.
I haven't made a search, but undoubtedly there are some scholarly studies somewhere of the rights of Roman workers. Did they have a wage replacement system if they were hurt... and what sort of medical treatment were they able to access...
And what about the rights of the craftsmen who built the grand Renaissance palaces and the Romanesque, Baroque and Roccoco churches that dot the landscape here?
You can sit in a Roman cafe for hours here-the espresso leaves Starbucks in the dust-and, like some existentialist philosopher, ponder the situation of humankind. Millions of people in our world work in sweatshops, with basically no rights. If they are injured, they are expendable.
The Italian economy itself is under pressure, lagging behind other European countries. The tradition of small family-owned factories and high-quality artisan manufacturing is under siege. China and other Southeast Asian countries can produce many of these items cheaper. An Armani design or a picture of the latest Prada purse can be e-mailed to China's Guandong province and knockoff production arranged within weeks, if not days.
The Euro is high and the dollar is very weak. America's dollars buy almost half of what they bought here in 2002. But-high Euro or not-Italy's workers are struggling since living costs are very high here.
But it's a world economy. By comparison with those Asian workers who are causing fear in the old industrial economies, California workers are better off. But California workers have lost a significant amount of their rights. In 2004, California businesses and large multinational insurers, such as AIG and Aon, teamed up. Most workers lost the right to select their own doctor. And the benefits they receive for disabilities have been drastically reduced. Tort reformers want to weaken the cadre of attorneys who fight for workers and consumers.
That's a story Workerscompzone will continue to follow.
Friday, June 22, 2007, 08:23 AM - Political developmentsSummer is upon us. Kids out of school. Barbecues. Enough daylight for all of those outdoor activities we love.
In Sacramento, the legislative year begins to take shape. Lots of maneuvering behind the scenes by different interest groups over various proposals for healthcare reforms. And, despite the threat of a veto by the Governor, some comp reform bills continue to move forward.
These are the comp bills I have been watching......
This bill, sponsored by Senate Pro Tem Don Perata, would raise permanent disability benefits over a 3-year period by increasing the number of weeks of payments. Schwarzenegger vetoed a similar measure last year. This bill is currently on the Assembly side, awaiting hearings in the Assembly Insurance committee.
Sponsored by Assembly Speaker Fabian Nunez, this bill would order the California Division of Workers' Compensation to revise the current rating schedule to increase ratings based on studies, including ones by the California Commission on Health, Safety and Workers' Compensation. This bill is currently scheduled for hearings in the Senate Labor and Industrial Relations Committee on June 27.
Carried by Pedro Nava of Santa Barbara, this bill would make an exception to the 24-visit cap on physical medicine services where the worker has had surgery. Hearings are scheduled in the Senate Labor and Industrial Relations Committee on June 27.
Authored by Tony Mendoza of Artesia, this bill would require insurers to pay supplemental job displacement vouchers to injured workers who are unable to return to work based on their estimated disability, even if they have not yet been declared permanent and stationary. It is in the Senate Labor and IR committee, but hearings are not yet scheduled.
Most of these bills are on the California Chamber of Commerce hit list, the so called job-killer bill list.
The best hope for some of these bills is that the Governor softens his opposition in a trade-off for action on some other issue he cares about.
In an upcoming post, I will be commenting on several other worthy bills that expand the rights of working people, including a bill to protect bereavement time.
Wednesday, June 20, 2007, 10:09 AM - Opinions and DecisionsU-Turn. A quirky film that has developed a cult following, Oliver Stone's "U-Turn" features Sean Penn as a hapless motorist who gets stranded in a two-bit Arizona town. Penn gets trapped in this god forsaken place as Billy Bob Thornton, his crazed mechanic, finds ever-longer excuses to work on his car. Penn is caught in a tangled web.
In life sometimes we need to do a u-turn but can't. Seemingly easy choices bind us and direct us to a future we don't understand.
So it is with many injured workers. Thousands of California injured workers don't seek representation and then blithely pick a doctor from a QME panel, knowing nothing about the panel doctor they are picking.
Frequently the worker picks a particular doctor because the doctor's office is nearby. Or perhaps the doctor went to Cal. Or Stanford. Or USC. Or UCLA. We love our brand names.
An unknown in California comp has been whether a worker who picks a doctor off the panel while unrepresented and then chooses to hire a lawyer can abandon the pick and choose a different doctor. The statewide WCAB has now addressed this issue.
If the unrepresented worker did not already see the panel QME, the worker can withdraw from the panel QME choice. And the lawyer can then request a panel in another medical specialty. The case is Nelly Romero vs. Costco Wholesale. The WCAB has chosen to designate this as a "significant panel decision". You can read the decision by clicking here:
http://www.dir.ca.gov/wcab/SignificantP ... 7-sp-1.pdf
This case should be a wakeup call to injured workers. It's best to talk to an attorney before picking a QME doctor. But even if you made a choice to see a QME, it's not too late to contact an attorney to discuss your choice.