Wednesday, July 4, 2007, 10:33 PM - Political developmentsThe Fourth of July. From the East Bay hills I've just finished watching spectacular displays at San Francisco's distant Crissy Field and the closer booms over the Berkeley marina.
Who creates fireworks in the comp system? Is there a group that is creating excitement for change? That was the hope of organizers of Voters Injured at Work (VIAW). In Oklahoma and some other states such groups have been a powerful voice for disabled workers.
Excitement does matter in the political process. In the run up to the 2004 reforms, hordes of small employers deluged the Sacramento capitol building and district legislative offices, complaining of a workers' comp crisis and demanding change.
It hasn't been easy for VIAW to get off the ground in California. VIAW has been ably served by its President Mark Hayes, its former executive director Peggy Sugarman, and by a host of other committed injured workers.
But many injured workers are dispirited by their experience in the comp system. And too few of those workers are accustomed to becoming political activists. I can't tell you how often I have seen eyes glaze over as I tried to explain the politics of comp to an injured worker.
So VIAW has limped along. Surviving, but underfunded and under subscribed. They've never reached the point where they can produce bus loads of injured workers to demonstrate against a bill.
But they are to be commended for hanging in there. At a recent DWC meeting on the recently unveiled DWC wage loss study, 3 VIAW members shared heart wrenching stories about the impact their injuries have had on themselves and their families. After all, workers comp was designed to help real people with real injuries. It's not just about charts, graphs and studies.
And VIAW is working to promote passage of several bills, including a bill that would clarify when a disabled worker can receive and start using a job retraining voucher (AB 1636).
Why don't more California injured workers get involved? It's a mystery to me.
I like many things about the VIAW website. You can check it out by clicking here:
And while you're at it, check out the site of Californians Injured at Work.
The site can be found here:
CIAW is project of an injured worker group which includes Sam Gold, himself an injured worker. Sam also does another site, Injuredonthejobtv. using community access tv studios in San Francisco and Sacramento, Sam has created an impressive archive of streaming video tv shows on workers comp issues. If your internet bandwidth connection is fast enough, you may enjoy checking out those shows. You can find that site by clicking here:
At least some injured workers are fighting back. Ka-boom.
Sunday, July 1, 2007, 08:23 AM - Understanding the CA WC systemThe Odyssey, the ancient epic poem of the Greek poet Homer, tells the heroic tale of sailors navigating through the Mediterranean and Aegean seas, encountering fantastic beasts and nightmarish dangers. The Sirens. The Cyclops...and more.
Workerscompzone has been in Italy this past week. Here, in the Aeolian Islands in the Tyrrenian sea off of Northern Sicily, the ancient Greeks thought the god of winds resided in a cave on the island of Vulcano. Occasionally the winds were released from a bag by the gods.
Not far from here, at the Straits of Messina (flanked by Messina, Sicily and Reggio Calabria, the toe of Italy's boot)were Scylla and Charybdis, monsters awaiting unsuspecting sailors. Scylla had multiple limbs and many heads.The Homeric hero did battle with these creatures as he sought to return to his homeland.
What in the world does this have to do with workers' comp, you ask. Next week I'll get the blog back to more mundane territory, covering recent legislative and case law developments. But now, here near Messina, I'm thinking about the ancients and how their themes relate to us.
The ancients looked to myth and heroic figures for guidance and as expression of their deepest fears and hopes.
In the comp world many of us have our own heroic figures
and demons. For some injured workers the heroic figure is the doctor and the embattled, overburdened applicant attorney, fighting the faceless insurance company and the
cruel defense attorney. Navigating through the system can be a Homeric epic for some workers.
Or, if you are a small employer, perhaps Scylla is the complexity of California employment law, with complicated rules and regulations and expensive workers comp premiums to boot.Your own insurance company (and the defense attorney they provide) may be your own Charybdis monster, not to be trusted.The motives of workers who make claims, even formerly trusted employees, become suspect.
The litigation process sometimes results in both parties demonizing each other. And the legislative process often results in major stakeholders adopting a take no prisoners approach to changes that would affect their interests.
Once in a while it's good for all of us involved in the system to step back and take a deep breath. It never hurts to look at the mythic subtext to our lives. After all, that's probably why so many obituaries say that he or she succumbed to a final illness after "fighting a brave battle".
California workers' comp was designed to be a benefits delivery system for workers who gave up the right to pursue recompense based on fault. Instead, have we wound up with a system delivering inadequate benefits that requires a Homeric odyssey for some workers? And if we are moving toward a paint by the numbers doc-in-the-box system, is that just another battle with the latest Cyclops?
Just some fanciful questions worth pondering.
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.