Sunday, June 28, 2009, 05:18 PM - Political developmentsFolks in Sacramento call it The Lake. You may know it as Tahoe.
The nation's second deepest lake, the summer Tahoe features a handful of snowy peaks and mahogany Gar Wood and Carlo Riva "woodie" runabout boats as well as gorgeous hiking and biking trails and classic watering holes.
It's here, at nearby Squaw Valley, that the California Applicants Attorneys Association is holding its summer conference. As usual, CAAA has put on a substantively challenging conference.
There was lots of discussion of new QME regs and procedures, Ogilvie, Almaraz/Guzman, COLA cases, Labor Code 4662 cases, 15% bump up/
And as you'd expect, there was much talk of recent CAAA losses: Benson (the demise of "Wilkinson") & Weiner (the demise of voc rehab)
& Smith/Amar (refusal to award attorney fees to fight treatment denials). Yet, the mood was quite upbeat. CAAA is nothing if not a committed, creative and adaptable organization.
The following are some random paraphrased snippets I've subjectively chosen for your reading pleasure:
Assembyman (and Attorney General candidate) Pedro Nava):
You do God's work.....
The notion that injured workers want to sit home and watch TV is an abomination.....
You have friends in the legislature........
Brad Chalk (Santa Rosa) & Alex Wong (San Francisco):
Most chapters in the AMA Guides are based on anatomical loss, not
functional loss; when a generic AMA rating does not adequately
reflect how the injury affects the worker, the doctor has a right and
duty to explain how and why. Chalk and Wong referred to many
tables in various chapters which lend themselves to analogies in
rating permanent impairment. They noted the Ferras panel decision
in which a 3 commissioner panel upheld a WCJ decision that found
use of a table in another AMA chapter more accurately described the
impairment (Ferras vs. United).
Attorney Skip Tescher:
With Almaraz/Guzman, films and videos are back in.......
We are lawyers....the WCAB is challenging us to be lawyers.......take
the evidence and run with it
CAAA consultant Mark Gerlach:
The board is still misinterpreting.....FEC is not DFEC..Commissioner
Caplane got it right in her dissent in Ogilvie
LA attorney Jack Breslavsky and Redding's Skip Tescher:
with Ogilvie there may be a "Benson bounce". The more they "Benson
you" the more you may make due to the way Ogilvie affects the
L.A. attorney Barry Hinden:
in response to a question which asked what to tell clients who asked
whether returning to work would affect their case (in light of the fact
the Ogilvie formula looks at 3 years post injury earnings): no
workers comp award makes up for loss of a job (to wide applause)
Central coast attorney Bill Herreras:
The purpose of apportionment....that the employer is charged with
nothing more and less than it caused.........
Unfortunately it appears that "Benson is the law"
San Jose's Joe Capurro and Sacramento's Melissa Brown:
We'll win the apportionment war slowly.....
It's disturbing that in Benson the law changed but they didn't allow
for development of the record
In the cases we'll need to look carefully at whether there is really
one long c/t
Bill Herreras (Grover Beach):
Merv Glow (a CAAA icon and former WCAB commissioner) always
admired losers... it's easier to claim the laurels of victory than
the yoke of defeat
The appellate approach should look to the purposes of a statute,
not to its absurdity. In smith/Amar the California Supreme Court
makes the statute an absurdity
L.A. attorney Lawrence Silver:
The courts have not been consistent....in Benson the appellate court
was activist and in Smith, strict constructionist
Ron Feenberg (Los Angeles)
Voc rehab is not dead...an existing VR contract is still alive....if you
are in plan, you are still in VR....the WCAB can enforce that contract
and attorney fees withheld pursuant to contract are enforceable
Lawrence Silver (Los Angeles)
In Ogilvie the board misunderstood DFEC...DFEC is looking forward
versus what someone did (which is what RAND looked at)....a big
of contention is the time frame for wage loss studies...RAND
used 3 years
Ogilvie is wrong, but it's the law...and it will produce a silver lining
so that in some cases the app attorney may argue for Benson
CAAA lobbyist Don Green:
Recommends Attorney General Jerry Brown as gubernatorial
candidate....Brown signed a bill allowing employees to have free
choice of medical treatment and a bill doubling PD benefits...his
WCAB commissioner appointments were outstanding
San Jose's Art Johnson:
Labor Code 4662 can be used as basis for rating...4662 is a
conclusive presumption, more powerful than a presumption
Under the AMA impairment system you can be closely approaching
death, with organ systems shutting down and yet you are not
100%; but the reality is that you can be totally disabled long
before they put you in the ground in a box
Pasadena's Jamie Berenson:
It may be easier to try a 4662 case than at 49-99% case....
You have to present what the worker is going through
Under Tremeroux, there's no apportionment in a 4662 case....
You've got to get the judge in the gut on these cases before you
get the judge in the brain....present a compelling case.....
Under 4662 an injury to the brain would encompass psyche
disability as well as head trauma, post concussive disorder etc
Johnson noted the Sally Perez case (VNO 0459871), in which the
WCAB panel upheld a WCJ finding of 100% in the case under Labor
Code 4662, with the WCAB panel citing this part of 4662:
"In all other cases, permanent total disability shall be determined
in accordance with the fact"
L.A. attorney Jack Goldfarb:
This is not for all our cases....those who aren't going to return to
work are the ones we need to fight over
Attorney Tom Martin (Orange County)
You're the tough ones....the last 5 years have been disorienting for
many of us
We're learning how to navigate through the system...we're light
years from where we were 4 years ago
Remember what Chico Marx says to Margaret Dumont in
"Duck Soup"...who are you going to believe? me or your own
San Jose's Tom Butts:
Consider asking your own client questions in deposition to get
their story on the record; many QMEs will look at this more
carefully than what is said in a brief office exam
Oakland Judge Lilla Rados:
Put on a prepared case so I can make my decision while it's fresh
in mind....don't make me think for months what the outcome
Martin (Santa Ana)
The Foote case and the Farras case give us a clue where the WCAB
will go with Almaraz/Guzman....
We've got to "be an army" to challenge doctors that some of these
pathologies didn't really play a role
As I left the conference, one experienced attorney leaned over to me and whispered that "It's a mixture of the old and new....what's exciting is that the trend is away from cookie-cutter justice. We can need to focus on the client and how their injury impacts their functioning".
Friday, June 26, 2009, 06:18 PM - Political developmentsThere's word today that Governor Schwarzenegger is threatening a third state employee furlough day.
Despite "user funding", only some SCIF employees are currently exempted from the
current two day furlough.
A three day furlough would further slow business at the state's Workers' Compensation
Appeals Boards. User funding is not saving the WCAB from pain.
As of Friday afternoon, the legislative impasse continues. In late afternoon remarks to the California Applicants Attorneys Association, State senator Mark DeSaulnier noted that "Dickens would be amazed if he came back to California now". DeSaulnier, the Chair of the Senate Industrial Relations Committee, noted that we currently have a "Winchester House" of government by initiatives that have led us to this crisis.
Also of interest: DeSaulnier noted that it is likely that Governor Schwarzenegger will not support the bill to extend the right to predesignate a doctor before a worker is injured.The right to predesignate sunsets at the end of 2009 unless it is extended by statute.
DeSaulnier has his hat in the ring for the U.S. House seat being vacated by Ellen Tauscher. Also running is Lt. Gov. John Garamendi, who many disabled worker advocates feel played a role (as Insurance Commissioner) in creating a crisis mentality that led to the harsh 2004 workers' comp reforms.
In my next post I'll cover more from the Squaw Valley CAAA conference.
Thursday, June 25, 2009, 07:23 AM - Political developmentsIs California fatally dysfunctional?
If so, is the problem that we have too many people with too many needs that are too reliant on the state for help? That we've ramped up too many programs that we can't pay for?
Or that we haven't developed a workable revenue stream, since a large percentage of state income taxes are paid by very high earners whose income falls in times of economic challenge?
Here's one take on what's gone wrong.
"How California Became Ungovernable".
That's the thesis of Jerry Roberts and Phil Trounstine, a pair of experienced reporters who've covered the California political scene for decades.
As we sit on the verge of going to IOUs to pay the state's bills, their argument is worth sharing:
http://www.calbuzz.com/2009/06/how-cali ... overnable/
Upcoming: I'll soon be attending the CAAA Squaw Valley meetings. Check back for some live blogging from there.
Tuesday, June 23, 2009, 09:11 PM - Political developmentsThe sale of part of SCIF may really be on. That's the word today.
Times are bad for the state budget. But dismembering-or crippling-SCIF is a terrible idea, even if it's in the laudatory service of saving some other worthy state programs.
Kudos to J. Dale Debber for uncovering the story. It's a must read, and here's a link to his investigatory piece in the Workers' Comp Executive:
While I don't have independent confirmation of the alleged events as related by Debber, I suspect his analysis is accurate.
These are the players in Debber's piece, for those who want to put a face on the palace intrigue:
Susan Kennedy, Schwarzenegger Chief of Staff and "Democrat" insider:
Cynthia Bryant, Director of Office of Planning and Research:
http://www.opr.ca.gov/index.php?a=about ... ryant.html
Bryant was one of the lead negotiators for the Governor at the time of passage of the 2004 SB 899 reforms.
http://caobserver.blogspot.com/2006/01/ ... ratic.html
I'd love to post more information about this story as it unfolds. Readers who have more information can send it to me at firstname.lastname@example.org
Sunday, June 21, 2009, 11:34 AM - Political developmentsPETA is upset.
That's the People for the Ethical Treatment of Animals. They're upset because Obama swatted a fly with gusto during an interview with journalist John Harwood. I must say his assertive swatting looked pretty good to me. The bigger question, it seems, is whether Obama can use some of that high but dwindling popularity to take on the herd of cats called Congress before the window to achieve healthcare reform closes.
Meanwhile, up in River City, Governor Schwarzenegger gave California Senate Pro-Tem a metal sculpture of bull testicles, presumably to highlight that it will take some cojones to solve the California budget chasm.
It was that kind of week.
In our workers' comp world, perhaps SCIF should take some swatting lessons from our President. But perhaps it's too late.
Like the pesky fly that keeps coming back, the tint of scandal continues to follow the State Compensation Insurance Fund. A new regime now runs SCIF, but the old regime is under the microscope.
A possible criminal microscope.
Who'd a-thunk there might be rapscallions in California's comp insurance industry?
Search warrants have been served at the offices of a former SCIF director, and more searches of other former personnel may follow. This could get very interesting.
Here's the L.A. Times piece on these developments:
http://www.latimes.com/business/la-fi-s ... 4915.story
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