Tuesday, July 7, 2009, 10:38 PM - Political developmentsI'm starting to see them. Are you?
I'm talking about laid off folks who look rather desperate. Today my client, a bright young twentysomething, tells me he is one of 17 laid off at the non-profit where he was working. The program is radically downsizing in hopes it can survive the economic storm in bare bones form.
In downtown Oakland-known locally as Oaksterdam due to the flowering of "pot clubs"- many new condos sit partially built. Next to Oakland's Federal Building a promising townhouse project is shrink wrapped. The developers are said to be headed toward bankruptcy.
Normally, electricians, plasterers, and painters would be swarming over that project. Today it sits dead, like a huge shrink wrapped load on a pallet.
As a workers' comp blog, this is about workers. Despite hopes that the tide is turning, unemployment continues to rise. And workers are working less hours, which means that there is extra capacity in the system, so the recovery will be slow.
It's still early, but there are major concerns that the "stimulus" has been a bust. Presidential adviser Laura Tyson (from UC Berkeley) has said that we may need a second stimulus.
Here's an excellent article by political analyst Jay Cost, taken off the Real Clear Politics site, arguing that Obama has made a strategic mistake the way the stimulus was done. It's a provocative argument:
http://www.realclearpolitics.com/horser ... mistake_1.
Monday, July 6, 2009, 10:24 PM - Political developmentsDeep Throat would have gagged if he'd lived long enough to see the current shenanigans at The Washington Post.
Once upon a time The Post was widely respected for its investigative journalism. Robert Redford and Dustin Hoffman played the intrepid reporters Woodard and Bernstein.
Presidents and Congressional titans had to mind their Ps and Qs lest The Post reveal their shenanigans. Top editors and owners of The Post managed to be of Washington society, but above it.
California's major metro papers covered Sacramento politics, but never in a manner that was as thorough as The Post covered D.C.
That's why it has been particularly disturbing to see the recent ethical meltdown at The Washington Post.
The Post has hawked a pay-to-play schmoozefest for industry reps (lobbyists) to join politicians and Post writers at a series of salon dinners at the home of Post publisher Katherine Weymouth.
These events were not pot-lucks. Invited participants (such as Kaiser Permanente) were to pay $25,000 for the privilege of having a meaningful discussion about healthcare reform. Access was being brazenly sold.
Here is a copy of an invitation sent from Weymouth's own e mail account:
http://www.theatlantic.com/images/issue ... -email.pdf
When the scheme was revealed by Politico (a new media) site, all hell broke loose. Dreadfully embarassed, the Post's executive editor Marcus Brauchli and Weymouth claimed that the "flyer" for the event was poorly designed and not vetted.
And on Sunday Weymouth penned a missive to readers claiming that it was all a mistake and promising to deliver a paper of journalistic integrity. The mea culpa note read in a most lawyerly fashion, and was not terribly convincing. Media critics responded with a Bronx cheer.
Weymouth never really explained how such an event could be planned in such detail (to take place at her home!) without her participation in the planning. And with politicians invited with her e mail account.
Today The Post announced a series of internal reviews to get to the bottom of what happened.
Unfortunately, this is not rocket science. One of our biggest and (formerly) most influential papers has devolved into a parody of the influence peddlers it investigates and covers.
The damage to the paper may not be irreparable. But the damage to Weymouth's leadership at The Post is grievous.
Why should you care?
For two reasons, basically.
First, we're in a transition period. Metro newspapers are dying. No one under 35 reads them except online (or on Kindle). You're reading this blog instead of reading a paper. Newsmags such as Newsweek and Time are now a pencil-thin joke. But in this period we still look to a few of the marquee newspapers for credible information amid the morass of junk on the web and in the blogosphere. This circus at The Post further demeans the print media.
Second, the healthcare debate is coming down to the wire. Anxious to avoid the political train wreck that occurred when Hillarycare proposals hit Congress during the Clinton Administration, Obama has been content to let Congress study and debate the issues. Various committees are working on plans, with or without a public plan option and with or without taxation of employer sponsored health benefits.
Various health industry groups have hired almost any ex-politician they can get their hands on to ensure access to the Senators, Congressmen and committee staff folks who will be writing any reform legislation.
The Post's "salon dinners" go right to the heart of this process, selling what is left of journalistic integrity on what is likely to be the defining issue of Obama's first term.
California workers' comp may be indirectly affected by the federal healthcare reform package, perhaps in ways we won't know until we see the package. That's why it's a background story worth bringing to the attention of my readers.
Here are more details that have emerged as Politico received more documents on all of this:
http://www.politico.com/blogs/michaelca ... on_offer_.
Friday, July 3, 2009, 09:31 AM - Political developmentsImmigration reform is one of the most contentious issues facing the country. Perhaps that's one reason that it seems to have been put on the
second-tier agenda by President Obama.
Better to spend political capital on healthcare reform, climate change legislation, and national security issues.
Immigration is an issue never far in the background for California workers. Labor standards enforcement task forces have focused on industries such as restaurants, car washes, laundries and other service industries which are heavy users of immigrant labor. Many employers in these industries do not carry workers' comp insurance on all their workers and do not observe wage and hour laws. California has no jurisdiction over immigration violations. The focus of state enforcement has been on employer conduct and working conditions.
The federal ICE raids of the last few years were heavily criticized by immigrants rights advocates and many in the labor community. Workers were said to have been terrorized, and hard-working individuals criminalized and families torn apart by worker raids.
The first sanctuary movement focused on helping immigrants from war torn El Salvador and Guatemala. The "Second Sanctuary" movement has focused on helping undocumented workers seeking a better standard of living north of the border.
Some of these advocates argued that "no person is illegal" and essentially argued against any sort of increased border enforcement or interior enforcement. Some argued that enforcement is futile and that the entire focus needs to be on wages and working conditions, to end exploitation of workers by a corporate America that wants and uses cheap labor with a wink and a nod.
Meanwhile, there's been quite a bit of debate in Sacramento over how illegals impact various education, health and prison costs as the state struggles to balance a giant budget deficit.
Others argued for enforcement against illegals, but for the focus to be on employers. Historically, employers have not been faced with tough consequences for hiring illegals.
Take a company like L.A. Apparel. The trendy clothing manufacturer, located in downtown L.A. has a manufacturing labor force of around 5,600, a third of whom are illegals.
It's been unclear until now what approach the Obama administration would take. High U.S. unemployment and the growing sense that a cartel-dominated, out -of-control Mexico may constitute a national security threat, have complicated the issue.
We now have an answer to what Obama intends. There will be a shift.
The focus will be on employers. There may be increased incentive for employers to use E-Verify, the voluntary system designed for employers to check Homeland Security and Social Security databases. E-Verify has its own set of problems, but it is one tool available to employers who are serious about compliance.
Check out this piece from the Los Angeles Times:
http://www.latimes.com/news/local/la-me ... 438.story?
Here's the New York Times story:
http://www.nytimes.com/2009/07/03/us/03 ... nted=print
Wednesday, July 1, 2009, 10:51 PM - Medical treatment under WCThere's word today that an advisory panel to the FDA has recommended a ban on Percocet and Vicodin, both of which are extremely popular painkillers.
Both of these drugs are frequently prescribed for injured workers.
It's a cautionary note for workers. Even if you doctor prescribes something, is it safe? Who do you trust? Is enough attention being paid to drug dosages and drug interactions by your physician?
Are you aware of the potential long term side effects of the meds you are taking?
If you are seeing multiple physicians, are they all aware of what the other docs are prescribing? And are they aware what over-the-counter pills you are taking? Even non-prescription drugs may contain elements that will push you into the danger zone when taken in connection with yourprescription meds.
Workers need to ask questions and make a point of discussing these issues with their doctors.
Here's a piece on the proposed FDA ban of Vicodin and Percocet:
http://www.nytimes.com/2009/07/01/healt ... nted=print
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".