Monday, July 30, 2007, 07:29 AM - Political developmentsIf you've been too busy swatting summer mosquitoes to follow state politics, never fear. Here's what's been going on:
Arnold can't deliver votes from members of his own party to pass a budget. California is almost a month overdue for a budget, and some critical projects may be delayed as a result. State Senate Republicans are in open rebellion against the Governor, who is seen as taking GOP support for granted. Want to follow the ins and outs of the thinking of this vocal but power-deprived GOP band of nay-sayers? Check out the California Flash Report, run by influential Orange County Republican activist Jon Fleischman:
Issues that are a priority for the Governor and legislative leaders- water projects, healthcare reform, education issues- are all on the back burner while the budget languishes. The more time it takes to deal with the budget, the less time available for action on these other big issues. Clearly, nothing will happen with workers' comp bills until there is a budget.
But an interesting subtext of the dysfunctionality in the capitol has been the seeming rift between Assembly Speaker Fabian Nunez and State Senate Pro Tem Don Perata, the state's two top legislative Democrats. These are the Democrats who make decisions on workers' comp bills, including pending bills to address the inadequacy of workers' comp permanent disability benefits.
It's never a great thing to see the leaders of your platoon sparring.
There's an excellent piece in today's San Jose Mercury explaining the background of the tension between Nunez and Perata:
http://www.mercurynews.com/portlet/arti ... siteId=568
Nunez has gotten some bad press for pushing some budget amendments at the expense of core democratic constituencies. You can see the Los Angeles Times article on that by looking here:
http://www.latimes.com/news/local/la-me ... t-callocal
The drama in River City will continue to unfold. And I'll be covering events as they happen.
Sunday, July 29, 2007, 09:46 AM - Political developmentsIt's a Sunday morning. Often with the blog I'll do a weekend post looking at some big-picture issues regarding workers and the economy.
Like scary movies? Last night I saw a doozy.
Workers knee-deep in oil sludge breaking up ships. Workers knocking used computers and tv's apart, releasing lead, cadmium, mercury and a host of other toxics. Workers kneeling in mountains of scrap, sorting and looking for nuggets worth using.
Workers holding self criticism sessions in regimented lines before entering the factory. Workers paid $5 per day.
It's China, as seen in the excellent film "Manufactured Landscapes" now playing in a small handful of theaters in the Bay Area, L.A. and perhaps a few other California theaters. The film follows photographer Edward Burtynsky as he travels through China and Bangladesh, visiting coal mines, recycling dumps, gargantuan factories, the Three Gorges dam, the construction of hundreds of skyscrapers in Shanghai and other projects.
Anyone interested in understanding the unfolding world of globalization we live in should check out this movie. The film captures the essence of Burtynsky's journey as he takes large format photographs of these factories and projects, some of which are on a scale unrivaled in human history.
Do these workers have any rights? Probably not. Are they marked for early demise by their working conditions? Probably. It's quite sobering.
China advances economically, but at a huge cost to worker safety and environmental degradation.
To see more about Burtynsky, click here:
Wednesday, July 25, 2007, 07:06 AM - Opinions and DecisionsOne of the most famous plays of the "modern" theater is Samuel Beckett's "Waiting for Godot". On a bare stage, two quirky characters hang around a sickly tree, bantering for hours about an individual named Godot. They wait for him, and he never comes, yet the vigil continues. A bizarre master and slave enter and exit, but nothing much happens. The play is perhaps a metaphor for the anxiety and search for meaning in many lives.
Like Estragon and Vladimir who wait for Godot, many of us in workers' comp have been waiting for Chang. Unlike Godot, Chang has now appeared.
What's this all about?
In that seething cauldron we call California workers' comp, one bright spot over the past few years was the decision of a San Francisco workers' comp judge that all pre 1/1/05 cases should be compensated under the old, pre-AMA rating schedule.
That ruling, in a case called Aldi decided by San Francisco Workers' Compensation Judge David Hettick, did not fly with the statewide WCAB, which overturned Aldi.The WCAB interpreted the 2004 Schwarzenegger comp reform to require a worker to show a report establishing the existence of permanent disability before 1/1/05 in order to be grandfathered in under the old schedule. At the end of this post I'll include links to a few earlier posts I did on this subject.
Statewide studies by UC Berkeley and UC Davis researchers have shown a drop off of over 50% in awards for permanent disability under the new schedule adopted by the Schwarzenegger administration.
The issue in the Chang case was similar to the Aldi case. Would the 3rd District Court of Appeal in Sacramento adopt the Aldi analysis, thereby sparing all workers hurt before 1/1/05 from the new schedule chopping block?
You can read Chang for yourself in .pdf format by clicking here:
http://www.courtinfo.ca.gov/opinions/do ... 053854.PDF
It's time to bury Aldi. The 3rd District Court of Appeal has adopted the same view as many of the other California Appellate Courts. Workers who weren't permanent and stationary before 1/1/05 are to be rated under the new schedule.
This decision isn't a big surprise, but it's a big hit for injured workers. And it locks in further huge profits for insurers, who are paying out less than 50% of workers' comp premium collected.
To see an earlier post on this topic ("Costco Gets What It Wanted"), click here:
http://www.workerscompzone.com/index.ph ... 4f787d6811
And to see what's really going on in the system, click here:
http://www.workerscompzone.com/index.ph ... 4f787d6811
Saturday, July 21, 2007, 08:27 AM - Political developmentsI'm pleased to note that I've been appointed to the California State Bar's Workers' Compensation Executive Committee, effective September 2007.
A number of California's influential workers' comp judges and attorneys are on the committee. Applicant attorneys and insurance defense attorneys are both well represented on the committee.
More information about that can be seen by clicking here:
http://www.boxerlaw.com/news/julius-exe ... ittee.html
One of my law partners, Bert Arnold, is just finishing up his term on the Executive Committee.
Stay tuned. In the next post I'll be covering yet another case addressing the issue of old permanent disability rating schedule vs new permanent disability rating schedule.
Thursday, July 19, 2007, 08:46 AM - Political developmentsAmerican workers are seeing their rights contract. California's 2004 workers' comp reform is but one example of a multi-state trend toward lesser benefits. Two-tier wage packages, shrinking healthcare coverage, no-strike contracts, vanishing pension funds....these are all examples of trends in the American workplace.
Here in Oakland trash piles up while Teamster garbage collectors remain locked out of their jobs. Waste Management has hired replacement workers.
And the U.S. Supreme Court's decision this year in Ledbetter vs. Goodyear Tire showed that the current crop of Supreme Court justices will interpret employee protections as narrowly as possible. In Ledbetter the court severely limited the time to file certain federal law discrimination claims.
Often we hear that changes are needed to help make American business competitive. Whole industries have gone offshore, but the ones that remain behind seek employee concessions and lower mandated benefits, including workers comp.
But guess what? The Chinese worker is starting to gain some rights. In June, the Chinese legislature passed a law to expand employee rights. The law will require written contracts for workers and make it harder for employers to lay workers off. Migrant workers will be given more rights. Workers whose contracts are renewed will receive more job security.
Independent unions are not allowed in China. But there is a state controlled union, the All China Federation of Trade Unions, which will be allowed to do some bargaining for wages and work conditions. China has a terrible problem with industrial accidents. Perhaps this will lead to some progress in working conditions and industrial safety.
You can read more analysis of this by looking at the New York Times article link here:
http://select.nytimes.com/search/restri ... 94DF404482
According to the New York Times piece, a number of multinational companies have complained about this new law. Nice guys.
For information on the position of some U.S. companies on this issue, compiled by the Business & Human Rights Resource Centre (which tracks the positive and negative impact of over 3,000 companies worldwide), click here:
http://www.business-humanrights.org/Doc ... rlawreform
Here's the website of the American Chamber of Commerce in China:
Chamber of Commerce in China? Remember, in Sacramento the Cal Chamber are the folks who powered the 2004 Schwarzenegger comp reforms.
And see the excellent analysis of labor rights in China from the think tank Foreign policy in Focus:
Interesting concept, though, isn't it? Major industrial nation exports jobs and industries, shrinking rights of workers in the process. Ambitious, hardworking countries see their economies grow at breakneck pace, and workers demand more rights.
Workers' comp is intertwined with global labor and economic issues. Stay tuned.