Wednesday, June 11, 2008, 10:12 PM - Political developmentsHere's the quiz of the day for you.
The worker is employed by the state of California or some other governmental entity. After conflicts on the job, the worker files a workers' comp psychiatric stress claim under California law. Eventually the state or governmental employer denies the claim, contending that the underlying events were part of a good faith personnel action.
The employee begs to differ, alleging that the events were discriminatory and not part of a good-faith personnel action. The case eventually goes to an AME or QME, who may resolve that issue. If not, it's a factual issue that gets dumped in the lap of the trial judge.
That's the common scenario.
But suppose the worker also sues in Federal court on various theories of discrimination such as race, national origin, gender, or religion. In essence, the worker claims that she was discriminated against on account of membership in a class of persons.
The worker also sues in Federal court on another theory.....the theory that government (her employer is the state, after all) has denied her "equal protection of the laws" by arbitrary, malicious, unjust and discriminatory conduct.
In our quiz example, the worker convinces the Federal District judge to allow the equal protection theory at trial. Although the jury finds no class-based discrimination (race, national origin, etc), they do come back with a plaintiff verdict of around a half million dollars. The theory? "Equal protection of the law". The person was discriminated against
as an individual, a "class of one", not because she was a woman or
member of an ethnic group.
This gets appealed. The result?
1)Hyper-liberal, ACLU friendly 9th Circuit Of the U.S. Court of Appeals
upholds the jury verdict, allowing the lawsuit. U.S. Supreme Court
upholds the verdict also, Justice Anthony Kennedy again exercising
a swing vote on a polarized court. The federal courthouse door is
2)9th Circuit panel rejects theory, overturning the verdict. U.S. Supreme
Court accepts case and gives 9th Circuit big pat on back for refusing
to extend worker discrimination lawsuits. Better stick with workers'
comp or state anti-discrimination laws.
3)9th Circuit panel endorses theory of right to sue in federal court for
discrimination in "class of one" lawsuit. The Supremes give the theory
the old heave-ho. Not going to allow the federal courts to be flooded
with personnel disputes of government employees.
The 9th Circuit decision is here:
http://www.ca9.uscourts.gov/coa/newopin ... 825727C005
Here is the June 2008 6-3 U.S Supreme Court decision, written by Chief Justice John Roberts in Engquist vs. Oregon Department of Agriculture:
I'll venture outside the comp system when there are "crossover" issues worthy of comment.
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Monday, June 9, 2008, 08:47 AM - QME processThe Race.
No, I'm not talking about Big Brown at the Belmont (can you believe there are equine hedge funds?). Not about upcoming Nascar events at Sears Point or Daytona. Nor about the interminable slog toward November change on the Potomac. Or Lehman Brothers' race to raise more capital.
I'm talking today about The Race.
Those in the trenches of California workers' comp practice know about
It's part of the QME process. A race to designate the specialty of the examining QME doctor. After the specialty is set, the DWC medical unit assigns 3 names. For workers who are represented, the parties each get to strike one of the 3 names on the list.
What's the rush?
A worker may be treating with a chiropractor or a pain management specialist, but the insurer may rush to select orthopedics as an examining specialty, thinking that orthopedists are more objective or more conservative.
Some attorneys may rush to designate physical medicine specialists, chiropractors, or pain management specialists, thinking those specialties are more sympathetic or better able to look at the range of effects injuries have on activities of daily living.
If the adjuster and applicant attorney can agree on an AME, there is no rush. Currently, interest in using AMEs varies widely from firm to firm.
Some prefer to use panel QMEs, believing they can get faster resolution of cases without waiting months to see booked-up AMEs. Some of these same carriers believe that the QME panels generally "lean defense".
Others in the industry prefer to use AMEs when possible. They prefer
using "known quantities", believing that better quality reports ensue.
AMEs tend to have been around the system longer and in many cases have a much better handle on the complexities of legal concepts such as apportionment and overlap, not to mention more understanding of the AMA guides. AMEs reports are less likely to be questioned by workers' comp judges. Here in the Bay Area some judges have problems with reports from some of the doc-in-the box mills that seem to have an "office" in every town in California.
But where agreement to an AME is not forthcoming, The Race begins.
"Winning" The Race (sophmoric as that sounds, I've had attorneys on both sides tell me they "won" The Race), becomes a goal.
Winning The Race may be determined by how quickly the post office delivers letters from the parties.
But it would be no better if state bureaucrats in Oakland have the power to make specialty determinations from their cubicles.
Ultimately, it's strange that we have a justice system in which the parties aren't free to obtain their own experts to develop their case. Instead, California has adopted a doc in the box system that's subject to all sorts of gaming.
Today's workcompcentral.com has a good piece by Jim McCaffrey on the concerns many attorneys have as the day approaches when new QME regs are unveiled. Check it out on today's workcompcentral.
Friday, June 6, 2008, 09:05 AM - Political developmentsJune elections aren't exactly barnburners, For most of the public, Tuesday's vote was a big yawn.
But for some comp attorneys, it was personal. Particularly many here in the East Bay of San Francisco. Richmond, the People's Republic of Berkeley, Oakland, San Leandro, Alameda.
The race was for the Democratic nomination for California State Senate.
The district is a solid Democratic one, and the winner is all but assured of prevailing in the general election.
One contender was former Alameda County supervisor and termed-out Assemblywoman Wilma Chan. Her opponent was Assemblywoman Loni Hancock, former mayor of Berkeley and wife of current Berkeley mayor Tom Bates.
What's the comp angle?
Hancock was one of the few legislators to cast a no vote on the Schwarzenegger 2004 comp reform bill, SB 899 (joining Joe Dunn, Richard Alarcon and a handful of others). Chan, despite her "safe"
district packed with strong labor organizations, voted for SB 899.
That, plus Chan's somewhat tepid personality, gave labor, injured workers and their advocates incentive to work hard for Hancock's campaign.
It paid off. Hancock now appears headed for the California Senate next year.
But what about other races across the state?
State Senator Carole Migden, a strong voice for disabled worker rights,
lost in a tough primary election. Dogged by revelations of prior campaign finance issues and an erratic driving incident, Migden's campaign could not get off the ground.
Migden (who serves til the end of summer) is currently the sponsor of an workers comp anti-discrimination bill that is pending in the legislature, SB 1115. Passage of that bill could cap a distinguished career.
Migden's candidacy was supported by many applicant attorneys, although her opponent, San Francisco Assemblyman Mark Leno, also drew support. Leno will eventually represent what is one of the most liberal districts in the state. I expect that he'll have a receptive ear to concerns about the need for change in the comp system. Marin County "business Democrat" Joe Nation fell short in his challenge for the seat.
Elsewhere in the state, labor had a pretty good day. So called "business
Democrats" lost in a number of Democratic primary battles, including
in San Mateo's 19th Assembly District, San Jose's 22nd Assembly District, the Santa Cruz area Assembly District , and the Southland's 78th and 80th Assembly Districts.
To see a handicap of some of these races, check out this post on the California Majority Report:
http://www.camajorityreport.com/index.p ... amp;aid=31
One big trend during this election has been the increasing role of independent election committees. Basically, political action committees
now have major sway in California election financing. Nurses, teachers, doctors, lawyers, prison guards, Indian tribes, various industry pacs. Support-or opposition-from some of these groups can make or break a campaign. Election consultants with ties to these groups can develop-or
trash-candidacies at the drop of a hat.
So this June's races are over. In Sacramento, the budget debacle now forces tough policy choices. The Governor's popularity is low, but so is the legislature's. You can expect a rough summer up there. Belt tightening isn't fun.
Comp is likely to be a sideline issue. But just in case it's not... You thought K Street was just the province of Washington lobbyists and the poster child for the need for "change" in Washington? Well, Sacramento has its own K Street. California's K Street folks-the California Chamber of Commerce-have their job killer bill list.
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Tuesday, June 3, 2008, 09:36 PM - Political developmentsWas a crosswalk study required? Huh?
Did chiropractors stage a major coup by hiring former California Supreme Court justice Armand Arabian to argue their argument that the 24-visit chiropractic treatment cap is unconstitutional?
No and no.
Two of the major California workers' comp mysteries appear to have been resolved yesterday.
After hanging onto the case for a year, the WCAB released its en banc decision in Scott Boughner vs. Comp USA. For those unfamiliar with the story, here's a thumbnail history.
At the trial level, San Francisco Judge Jacqueline Duncan had ruled that the Schwarzenegger administration's 2005 permanent disability rating schedule (adopted in late 2004 after the May 2004 SB 899 comp reform) was invalid. Boughner (a most pleasant fellow who walks slowly with a painful limp), ably represented by San Francisco attorney Jeff Greenberg, would therefore not have been governed by the 2005 schedule. In her decision (viewable by a link below) Duncan cited a number ways the adoption of the schedule by then DWC-Administrative Director Andrea Hoch failed to comport with statutory requirements.
Its a case that has been closely watched by worker advocates and the industry. The 2005 PDRS now governs many pre-2004 injuries and will continue to apply to injuries until the adoption of a new schedule later this year or perhaps even in 2009.
The WCAB en banc decision rejected Judge Duncan's approach, overturning her decision that the 2005 PDRS is invalid. Specifically, the decision finds:
-that Judge Duncan was in error in finding that Hoch had not used empirical data from the RAND study in formulating her 2005 rating factors
-neither the deposition testimony of RAND's Robert Reville or testimony of insurance consultant Mark Gerlach were sufficient to rebut the presumptive validity of the PDRS
This is the WCAB en banc decision in Scott Boughner vs. Comp USA :
http://www.dir.ca.gov/wcab/EnBancdecisi ... 8-EB-1.pdf
It's not light reading. Wonks....If you're rusty on the details, I suggest you start by reading Duncan's decision before diving into the en banc decision.
Here's Duncan's decision:
The insurer's appeal the followed:
I expect Greenberg to seek a writ, thus trying to take the issue to the California Court of Appeal. But it's quite likely that this is an issue that the California appellate reports won't be anxious to jump into. Part of the problem is that there's a high legal standard for courts to declare administrative regulations invalid.
So at the end of the day, thousands of workers may be stuck with the 2005 PDRS. And no "crosswalk study" to translate restrictive "impairment" rules into a "disability" rating sufficient to adequately compensate disabled workers.
In yesterday's other news, hiring a Supreme Court alum to do your oral argument is no guarantee of success. The 1st District Court of Appeal refused to find the 24 visit chiropractic cap unconstitutional. Here's the case, Jose Facundo-Guerrero vs. WCAB and Nurserymen's Exchange:
http://www.courtinfo.ca.gov/opinions/do ... 119814.PDF
Not a good day for workers and doctors. California courts are generally making it clear that they are loathe to interfere with the 2003 and 2004 comp reforms. If there's to be relief, it likely needs to be done at the legislative level, perhaps in 2010 and beyond.
More on the Boughner issues in later posts.
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Friday, May 30, 2008, 12:52 AM - Political developmentsMaybe the apocalypse is near, after all.
Monster earthquakes in China and typhoons in Southeast Asia. Several men attacking Stonehenge to chip off part of the rocks. Bush's press secretary turning on his old boss, in service of "the truth" or "the big book advance". Carrie from "Sex and the City" getting married. Radio talk jock Michael Savage playing music from the group "Dead Kennedys" in celebration of Ted Kennedy's brain tumor. And they're ceasing the manufacture of Polaroid cameras.
You can hear the footsteps of the 4 Horsemen.
If you're a Reep, add to that the sick leave bill (AB 2716), which passed out of theCalifornia Assembly on a party line vote, with Dems in favor. After all, the Republican mantra has been for less regulation and no new mandates.
Mandated paid sick leave? A job killer, according to the California Chamber of Commerce.
But what's the fuss all about? If a business has 10 or more employees, workers would get up to 9 paid sick days per year. The paid sick days would be up to 5 per year for smaller firms. Sick leave would accrue at one hour for every 30 hours worked. There would be a 90 day waiting period for new employees before they could accrue sick time.
Even though he hasn't announced a position, it's likely Governor Schwarzenegger will veto AB 2716 (I'm assuming it will make it through the California Senate). After all, Schwarzenegger has hewed to the Cal Chamber's anti-"Job Killer" agenda in every instance.
This bill has good policy aims. Workers do sometimes come to work sick, infecting other workers in the process. So there's some overall benefit to having sick workers actually stay away from the workplace. Most people can recall the torture of being next to a sneezing, feverish co worker and the attendant anxiety that provokes for one's own health.
And in a humane economy, employers need to factor in reasonable compensation for workers, knowing that some amount of illness is inevitable. Overall, the bill advances the notion of a healthier workplace.
But it does add costs for some employers who do not provide paid sick leave. The bill would be the first state-mandated program in the country. Opponents cite fears that business will leave California. It's an argument used by them to advance the notion of comp reform several years ago. Evidence on the issue is mixed, and anecdotal.
Would this bill have ramifications for workers' comp? It's hard to predict, but it's possible that the law might discourage some comp claim filing. Conceivably, some workers might cover their need for paid time off as illness rather than go through the hassle of filing a comp claim.
Here's the Sacramento Bee article on the bill, carried by Assemblywoman Fiona Ma of San Francisco:
To see the bill's text and history, look here:
I'll be in Shell Beach for a few days at the State Bar Workers Comp Executive Committee meetings.
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