Monday, August 6, 2007, 10:06 PM - Political developmentsCheese.The French may love their brie, the Spanish their Manchego, the Dutch their Edam, the British their Cheshire. But a whole generation of Americans grew up on Cheese Whiz. As a teenager I recall spraying a whole can on a pack of Ritz crackers.
But in workers' comp Cheese Whiz means something else. It's the endearing term for CHSWC, the Commission on Health, Safety and Workers' Compensation, an official advisory board that examines workers' comp issues in California. CHSWC studies and recommendations are often noted in legislative battles over workers' comp.
This Thursday (8/9/07) there will be an important CHSWC meeting (open to the public) in Oakland at 9 am in the auditorium at the Elihu Harris State Building. Among the presenters will be the acting director of the Division of Workers' Compensation, Carrie Nevans. Nevans will be reporting on "update on permanent disability studies." Following her will be CHWSC consultant Lachlan Taylor and UC Berkeley researcher Frank Neuhauser, both reporting on their research on how permanent disability has been affected by the 2004 reforms.
Both Assembly Speaker Fabian Nunez and State Senate Pro Tem Don Perata have pending bills which would raise permanent disability awards. But the California legislature is currently locked in seemingly intractable disputes over the state budget. And even if those bills are not a casualty of the budget, they may be killed by the Governor's veto pen.
Which makes meetings like the CHSWC Thursday meeting all the more important. What does Neuhauser's data show? Are permanent disability awards continuing to shrink? And will Nevans tip her hand as to what the administration is prepared to do to address the situation? Or will she indicate that nothing will be done until further studies are received?
There will also be a report on the law of apportionment, presented by longtime administration veteran Charles Swezey.
There is no charge to attend. You can see the agenda by clicking here:
http://www.dir.ca.gov/CHSWC/Meetings/20 ... 92007.html
Friday, August 3, 2007, 04:25 PM - Opinions and DecisionsAt the bottom of this blog entry I've uploaded a pdf version of the Magana case (Bonifacio Magana vs. Essey International Inc and Wausau Insurance)that was just recently decided.
A decision by a 3-member panel of the statewide California Workers' Compensation Appeals Board, Magana appears to decide some important issues regarding how and when attorneys can use vocational or labor market experts to rebut the current Permanent Disability Rating Schedule.
(CAUTION: Magana is the opinion of 3 WCAB commissioners only, and does not necessarily represent a majority of the current WCAB. Moreover, this decision is subject to
appeals and therefore is not necessarily the last word on the issues decided.)
What were the facts in Magana and why is it important?
In Magana, the workers' compensation trial judge ruled that the claimant had a 12% disability, relying on the impairment rating under the AMA guidelines as adjusted by the current Permanent Disability Rating Schedule ("the PDRS"). (Note: The current PDRS itself is under attack as being inadequate and one San Francisco judge has ruled in the Boughner case that the PDRS is arbitrary, capricious and invalid; but that decision is on appeal to the statewide WCAB). Although the en banc decision of the statewide WCAB in the Costa case was to allow vocational/labor market testimony to rebut the PDRS (a decision which is also under appeal), the trial judge in Magana refused to follow labor market testimony that challenged the schedule.
Two labor market experts testified at Mr. Magana's hearing. The defense expert apparently testified that Magana would not sustain future wage loss. A vocational expert hired by Magana's lawyer testified that Magana had a 27% diminished future earning capacity (DFEC)loss.But the trial judge awarded a 12% permanent disability rating, not 27%. Magana appealed.
The WCAB panel decision is a big disappointment to injured workers and their advocates. The WCAB panel takes the position that it is not proper for the WCAB to award a rating solely on DFEC testimony. Rather, the Magana panel appears to indicate that the judge must start with an AMA impairment rating and then use the PDRS to generate a disability rating. By this analysis, it is the
PDRS which is subject to rebuttal testimony.
If you're not a lawyer or industry veteran, it is confusing. But try to stay with me here.
Under the facts of the Magana case, the diminished future earning capacity of Mr. Magana was somewhere between 0% (per the defense expert) to 27% (per the applicant expert). The panel of commissioners refused to overturn the judge's findings of 12% PD, noting that 12% was within the range of the DFEC estimates. The panel concluded that "..the PD rating herein, which is based upon the DFEC modifier in the 2005 PDRS, essentially is in accord with the range of expert evidence on DFEC and as such is inherently reasonable and probable."
The WCAB panel appeared troubled that the rebuttal testimony of the applicant's vocational expert was presented before the workers' comp judge issued a recommended rating.
It's not clear if the Magana panel is indicative of a consensus on how DFEC testimony will be allowed. But if DFEC testimony is allowable only AFTER a rating is issued by the WCAB, countless cases will be forced to go to trial, further administratively burdening the creaky WCAB judicial system.
In Magana it appears that it was a no brainer to all the parties what the rating would be under the AMA/PDRS. It was 12%.Under that circumstance, why the big fuss about hearing the DFEC testimony at the time of trial? Would it have made a difference if the parties had stipulated at a pretrial conference that the rating would be 12% unless modified by DFEC testimony?
Does the WCAB really want 2 trials? One on the underlying AMA rating/PDRS and then a separate trial on DFEC?
There's a lot to sort out here, and I look forward to other commentators weighing in.
I'll be uploading the decision itself for you to read by clicking here: The Magana Case and DFEC
Thursday, August 2, 2007, 07:37 AM - Political developmentsWith the new mantra of "post-partisanship" in shambles and with California over 30 days without a budget, the lockstep nay-saying of the California Senate Republican caucus crumbled last night.
The budget, supported by Gov. Schwarzenegger, needs 2 Republican votes to pass. Last night State Senator Abel Aldonado (from Santa Maria) joined Democrats in voting for the budget.
The problem? They need one more vote. Without that vote, basic services will be unfunded. It's already happening. That's the front story. By clicking the following link, you can read more about the crisis for the poor as Medi-Cal payment funding runs out:
http://www.sfgate.com/cgi-bin/article.c ... =printable
But there's also a back story. Post-partisan cooperation between the political parties may be a casualty of the budget holdup, but there may be policy casualties as well. The Assembly is on recess until August 20 with Assembly Speaker Fabian Nunez on holiday in Europe while the Capitol melts down in recriminations over the budget. The big problem is that once the session resumes there may be little time to deal with major policy initiatives like healthcare reform, water storage projects, term limits and redistricting. And workers' comp.
Sometimes bills do well if they are lost in the inevitable last minute horse trading of the legislative session. But with big policy bills the narrow window of time until the end of the session gives various interest groups an extra opportunity to derail a legislative package. The budget debacle may serve the interests of opponents of the Schwarzenegger and Nunez-Perata healthcare bills.
But hey. With comp there are some bills pretty much ready to go. The problem those bills face is the governor's desk.
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: