Tomorrow there will be State Senate committee hearings on several workers' comp bills I have been following. As the legislative process moves along toward its usual August conclusion, it is time for these bills (which originated on the Assembly side and which have already cleared the Assembly) to be heard by Senate policy committees.

The hearings will be held by the California Senate Labor and Industrial Relations Committee on Wednesday at 9:30 in Room 2040 in the Capitol. Sometimes committee hearings can be seen on streaming video through the California Channel website, but tomorrow's hearings aren't currently listed for coverage.

The key bills to watch are these:
AB 1073 (carried by Pedro Nava of Santa Barbara) would loosen the limits on physical medicine services for post-surgical cases
AB 1636 (carried by Tony Mendoza of Artesia) would require insurers to issue a job displacement retraining voucher based on a reasonable estimate of permanent disability even if the level of PD has not been officially determined
AB 338 (carried by Joe Coto of San Jose) would change the current rule that allows workers injured after the 2004 reforms to receive TD only within 104 weeks from the commencement of a first TD payment. The bill would expand the entitlement to 156 weeks over a period of 5 years.

To research the current text of these bills, you can check the leginfo website here:
http://www.leginfo.ca.gov/bilinfo.html

I'll be surprised if these bills don't make it past the committee, although there could be amendments. But under a Governor who seems to take his cues from the California Chamber of Commerce, their future is uncertain. In future posts I'll cover each bill separately once the bill emerges from the Senate on the way to the Governor.

Stay tuned.

Julius Young
http://www.boxerlaw.com/verdicts.html
*

Goodbye, Mr. W. No, no, not that W! Not the Dubya who resides in Crawford, Texas and near the Potomac.

The goodbye is to Melvin Witt, longtime editor and publisher of the California Workers' Compensation Reporter. For many years the CWCR has been the go-to source for monthly updates and commentary on California workers' compensation law (note:the CWCR will continue under the able leadership of former workers comp judges Bert Cohen and Charles Swezey , attorney Barry Lesch, and Paul Peyrat. The website is www.cwcrwitt.com)

Witt, a member of the Workers Compensation Appeals Board years ago, has been a non-partisan observer of comp for years, giving him an unparalleled historical perspective on the system.

In the June 2007 issue, Witt penned a goodbye to subscribers. The farewell is as eloquent an indictment of the current status of California workers' comp as I have seen. Here is what Witt said:

"It is the changes in workers' compensation law, however, that have brought me to a final decision to retire, changes that our governor brought about almost single-handedly. His impact on workers' compensation was brought forcibly home to me by a recent phone call from an injured worker who told me of his determined efforts to navigate the system but who came up defeated. Following a major injury to his legs, knees and back, he had gone regularly for treatment to an able and concerned doctor and had hired a skilled attorney to advise him. A number of medical procedures that his doctor recommended as necessary to cure or relieve him from the effects of the injury were rejected by the insurance carrier, leaving him, his doctor told him, with far more disability than he would have had with the proper treatment. And, as his attorney informed him, that disability would bring a relatively low rating and monetary return. Devastated by
how the system had dealt with him, he was clearly a victim of what could be called "the Schwarzenegger era of workers' compensation"."

Witt continued in his farewell address as follows:

"Steeped as I have been in a system that aimed to protect injured workers, I find it difficult to make an adjustment to one that now appears to concern itself first and foremost with lowering employer costs and raising their insurance carriers' profits. Yes, employer premiums were too high and carrier profits too low but for a myriad of causes, not just rising costs of benefits to injured workers. The conduct of the insurance industry itself was a major factor in producing a "crisis"
in workers' compensation. Employers and carriers then used that crisis to justify a meat-axe approach to reform."

Witt then noted:

"That strategy focuses primarily on lowering premiums, and it is achieved by reducing benefits. Many injured workers may already be looking to welfare and charity to help them and their dependents cope with the effects of greatly reduced temporary and permanent disability benefits and a restrictive approach to medical treatment. Employers and carriers have been given far too much control over medical processes at the expense of timely and adequate treatment for injured workers."

Looking at the history of workers' compensation systems, Witt noted that:

"Early in the last century, it was the common law system's unfairness to injured workers that caused them to have to look to welfare and charity. Eventually the common law's corrosive effect brought about the adoption of a workers' compensation insurance system that placed ultimate financial responsibility for industrial injuries on consumers of industry's products and services. It was they who enjoyed those products and services and they who should pay for them as a cost of their production. Now, draconian legislative and administrative restrictions have so pared down insurance costs that California's system allows consumers to avoid paying the true costs of producing goods and services. Instead, much of those costs have again been placed on the injured workers themselves as well as on taxpayers in the form of welfare and charity. But are substantial portions of the huge premium savings being passed on to consumers or employers? Many believe they are not, and the figures bear them out."

Looking to the future, Witt said:

"It appears that injured workers cannot look to the legislature or the courts for any real relief. Apparently it will require the election of a governor in 2010 who is not commited to perpetuating the unfairness of the 2004 Schwarzenegger reforms. We have moved from a system of minimal state intrusion, which left dispute resolution to the ability of each side to produce the more persuasive evidence, to a system in which a virtual stranglehold has been imposed on procedures and on what and how medical evidence can be used."

Witt observed that:

"The number of pages comprising workers' compensation statutes and DWC and WCAB rules has grown from 278 in 1989 to 756 in 2006, in the LexisNexis publication titled Workers' Compensation Laws of California. Most of the increase has been at the behest of industry that had long fought the imposition of rules and regulations as stifling and misdirected, if not just plain foolish, charges that it had leveled against occupational safety and health regulations. The shift in focus of workers' compensation from the well being of injured workers to how much employers can afford to pay in workers' compensation premiums has been engineered in a way that enables employers and particularly their carriers to prosper while injured workers must find a way to live on the paltry compensation they receive and too often without needed medical treatment. An impression is left that the workers' compensation system has become unfair to the very persons who should receive its greatest protections."

In closing, Witt spoke to the future:

"The pendulum does swing, however, and it can be hoped that political forces will eventually bring a reversal of direction as the inequities accumulate and the excesses of SB 899 become even more obvious than they already are."

Eloquently said, and an inspiring example of the concern that workers' comp stakeholders should have for the integrity of a troubled system.

Stay tuned.

Julius Young
http://www.boxerlaw.com/attorneys.html
*

The 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.

Ka-boom. Ka-boom.

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:
http://www.viaw.org/

And while you're at it, check out the site of Californians Injured at Work.
The site can be found here:
http://www.ciaw.org/
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:
http://www.injuredonthejob.tv/archives.html

At least some injured workers are fighting back. Ka-boom.

Stay tuned.

Julius Young
http://www.boxerlaw.com/practices/workerscomp.html
*

The 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.

Stay tuned.

Julius Young
www.boxerlaw.com
*

It'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.

Stay tuned.

Julius Young
www.boxerlaw.com