A constipated legislature. A governor who can't move his agenda. A budget 6 weeks overdue. A legislature on summer recess that will reconvene with just 3 weeks to wrap up all business.

R.I.P. healthcare reform? And workers' comp?

To see the L.A. Times piece on this, click here:
http://www.latimes.com/news/local/la-me ... ome-center

Julius Young
www.boxerlaw.com
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Today in Oakland the California Commission on Health, Safety and Workers' Compensation (CHSWC or "Cheese Whiz") is holding hearings on key aspects of California workers' compensation.

For your reading pleasure I'm attaching a pdf version of some of the materials that were made available there this morning: Analysis of ratings under the new PD schedule

Julius Young
www.boxerlaw.com
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Chico, California. What comes to mind?

Bucolic small Northeastern California town? After all, the town of Paradise is just down the road. Or maybe you recall seeing that the Cal State campus there has been a perennial contender for one of the nation's top "party schools"?

But Chico also has a regional medical center, Enloe Hospital. From there comes a cautionary tale about the effect of the 2004 SB 899 comp reforms on medical treatment. You can read Vince Abatte's piece about this from the Chico News and Review at the bottom of this post.

Injured workers from many small communities in Northeastern California have sought treatment for chronic pain at Enloe Hospital's Occupational Health clinic. With the departure of the chronic pain specialist who staffed those cases, the hospital's clinic has no one to treat chronic pain cases. And the prospects for recruiting such a physician appear bleak.

Moreover, due to the restrictive ACOEM guidelines and the red tape of Utilization Review procedures, apparently few doctors in the local Butte County community are willing to accept the cases of workers' comp patients who need attention for long term chronic pain.

This confirms what I've been predicting for some time. The system's complications are affecting access to workers' comp services for individuals in sparsely populated areas of California. And just as claimants in rural areas will have difficulty finding treatment, so will they have trouble finding legal counsel as the cumulative effects of the reform discourage attorney involvement.

Since I've been doing this blog i have received e mails from workers from these kinds of places. Glenn County. Imperial County. Modoc County. They couldn't find a doctor or a lawyer or both. Isolated, some of these workers are the most in need.

Those sitting in ivory towers at the DWC and WCAB need to give some attention to this.

You can see the Chico article by clicking here:
http://www.newsreview.com/chico/Content?oid=359879

Julius Young
www.boxerlaw.com
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Cheese.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

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

Stay tuned.

Julius Young
www.boxerlaw.com
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