Today's blog post by Joel Fox on "Fox and Hounds" is worth noting.

Fox is publisher of "Fox and Hounds" and is the President of the Small Business Action Committee.

Fox wistfully notes that pro-business forces had enough signatures to pursue a ballot initiative in 2004 and had been advised by some legislators to file "because they believed our initiative reform was stronger than what was coming out of the legislature".

Whether intended as a threat or not, Fox closes his blog post with this:
"With the threat of troubling workers' comp increases facing business again; we will see if that was the right move."

Here's a link to Fox's piece:
http://www.foxandhoundsdaily.com/blog/j ... comp-redux

Stay tuned.

Julius Young
www.boxerlaw.com

In an astute article, savvy Sacramento Bee columnist Dan Walters notes
the cycle that seems to prevail in California workers' comp.

After reforms, some system stakeholders nurse their wounds. Pressure builds until there's another set of players demanding reform.

It's a cycle I noted in my recent post, "Hurricane Season":
http://www.workerscompzone.com/index.ph ... 815-091042

You can find Dan Walter's piece, "Workers' Compensation War Poised for Blowup" here:
http://www.sacbee.com/2010/08/23/297575 ... %20Walters

Stay tuned.

Julius Young
www.boxerlaw.com

In a victory for disabled workers, the California Court of Appeals 6th District has upheld the decision in the Guzman case (actually known as Milpitas Unified School District v. WCAB and Joyce Guzman).

While not final/final, its starting to look like the Almaraz/Guzman II decision of the WCAB will survive.

Workerscompzone is on vacation. But when I return to my office I'll be analyzing Guzman in a video point-counterpoint format I'll be launching soon with a leading defense attorney. More about that another time.

The Court of Appeals has yet to decide to hear the Almaraz II case, and in fact may never grant a writ to hear the case.

Unless a conflict develops between different California Court of Appeal districts, it's hard to imagine the California Supreme Court wading into this controversy. After all, the California courts have extended great deference to the WCAB.

So, it would appear that Guzman is here to stay.

This pretty much undercuts some of the self-serving experts who packaged themselves as keepers of the pure AMA Guides flame.

The decision by the 6th District makes it clear that doctors and judges are not bound to administer cookie cutter justice based on shibboleths of a narrow AMA Guides approach.

As the 6th District notes, "we take a broader view of both its text and the statutory mandate". The 6th District noted:
"We cannot expand the statutory mandate by changing the word "incorporate" to "apply exclusively." Nor can we read into the statute a conclusive presumption that the descriptions, measurements and percentages set forth in each chapter are invariably accurate when applied to a particular case. By using the word "incorporation," the Legislature recognized that not every injury can be accurately described by the classifications designated for the particular body part involved. Had the Legislature wished to require every complex situation be forced into preset management criteria, it would have used different terminology to compel strict adherence to those criteria for every condition."

Also worth noting in the opinion:
-the 6th district notes that "The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides. pp.4,5.)"
-the Court also notes that "The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms."

This leads the 6th District to note the importance of clinical judgement and the concepts of Chapters 1 and 2 of the Guides.

At the end of the day under Guzman, the "how and why" expressed by the physician will be critical. The 6th District notes that the physician's medical opinion must constitute substantial evidence.

Defendants will argue that Guzman applies only to extraordinary and complex cases. The decision notes that "Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected."

So we can expect defendants to focus on challenging doctors as to the how any why they are using other descriptors under the Guides. For example, the Court noted "if Guzman's carpal tunnel syndrome is adequately addressed by the pertinent sections of Chapter 16, an impairment rating that deviates from those provisions will properly be rejected by the WCJ".

On the other hand, noting in this decision prevents a physician from using other portions of the Guides where the Guides would otherwise not describe the condition qdequately. That's where we'll see doctors using their clinical judgement.

In the coming year or two we'll see the WCAB setting forth parameters in some cases as to how far doctors can go in using other charts, tables or methods. And we'll see in some cases how much how and why analysis the examining physician must provide before successfully departing from the "straight AMA" analysis.

But for the moment, chalk this up as a big win for disabled workers.

Here's a link to a pdf of the Guzman II decision:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf

And here's a link to the decision of the 6th District:
http://www.courtinfo.ca.gov/opinions/do ... 034853.PDF

Stay tuned.

Julius Young
www.boxerlaw.com

September 28.

That's the day now scheduled for public hearings on the WCIRB's recommendation for a 30% workers' comp premium rate increase (actually the recommendation is for a 29.6% increase).

Yesterday the WCIRB submitted its pure premium rate filing to the California Department of Insurance. You can see the filing here:
https://wcirbonline.org/wcirb/resources/rate_filings/2011_rate_filings.html

The hearing will be held at the CDI conference room at 45 Fremont Street in San Francisco, 22nd Floor.

The WCIRB press release noted that
"If the full 29.6% increase is approved by the Insurance Commissioner, the January 1, 2011 pure premium rates will still be, on average, 53% lower than the approved pure premium rates in effect July 1, 2003."

The message to employers? Suck it up.

Stay tuned.

Julius Young
www.boxerlaw.com

Hurricane season is upon us.

Unsettled weather brings tropical storms, some of which turn into hurricanes. Some hardly make a dent, like recent Hurricane Alex. Some look threatening, but fade into "tropical depressions", like recent Hurricane Bonnie.

But others, (like Katrina or the Hurricane Hazel of my childhood memories in the Carolinas) leave a swath of change in their wake.

These hurricanes start with peculiar atmospheric conditions. Our weather scientists track those as they arise, knowing that many times it will dissipate.

But not always.

So it is in California workers' comp. The last big comp hurricane was in 2003/2004.

Pressures inevitably develop. Winds begin to strengthen. Thunder is heard in the distance.

So it is right now.

The thunder this week was news that the California Workers' Compensation Insurance Bating Bureau will soon be filing a request for a 30% increase in workers' comp rates.

More thunder was heard, as some in the employer community began to sound alarm that the Schwarzenegger workers' comp reform agenda was threatened. The argument was made by John Kabateck executive director of the National Federation of Independent Business in a piece "Workers' Comp May Be Headed for Another Rough Ride in California":
http://www.insidebayarea.com/opinion/ci_15720925

Perhaps the storm will pass.

Insurance commissioner Poizner will hold hearings on the WCIRB request.
Insurers are free to raise rates no matter what Poizner does, of course.
But the hearings may provide shed important light on the strength of the gathering winds.

The WCIRB's recent decision to seek an increase of 30% broke down along insurer members of WCIRB versus the public members. And there have been recent charges that some WCIRB public members are not allowed access to key policy-setting meetings.

All this sturm and drang insures that there will be extra interest in the hearings surrounding the upcoming WCIRB rate hearing.

There will be analysis of how much the insurers are really profiting......whether they are getting a handle on controlling loss adjustment expenses....and whether results from SCIF are skewing figures applicable to the rest of the industry.

A major part of the brewing storm is medical treatment costs.

Within the past several weeks we've seen just how hard it is to control costs in the California comp system. No group wants to give ground.

Part of the DWC's 12 point cost cutting agenda was to achieve savings from ambulatory surgery center fees. An earlier plan to cut fees from ambulatory surgery centers had been expected to save $70 million in system costs.

A current proposal would cut the ambulatory surgery center fee structure by only about $40 million.

The surgery centers may have their reasons to object, and object they do to even the lesser cut.

Parties to the system don't want to take a haircut. And some of the surgicenter doctors threaten to pull out altogether if they are forced to take a hit.

We saw a version of this playing out last week with a bill to control the costs of compounded medicines. The bill, AB 2779 (Solorio), would limit reimbursement for compounded prescriptions unless they were proved to be medically necessary, and the Medi-Cal fee schedule would govern such medicines.

Increased use of compounded medicines appears to be a growing cost driver in the system and a tempting profit center for some physicians.

While there may be a case that can be made occasionally for their use under special circumstances, widespread use of compounded medicines would appear to be abusive.

AB 2779 passed out of a California Senate committee but may well be watered down if it moves forward at all.

Forcing haircuts is hard.

And we've seen that in recent efforts to devise a different fee structure for doctor payments.

On August 17th the DWC will be holding a hearing in Oakland on its efforts to reform the fee schedule:
http://www.dir.ca.gov/dwc/dwc_newslines ... 40-10.html

A recent version of the fee schedule elicited strong comments from doctors, some of whom.....well, you guessed it.....threatened to stop treating injured workers.

So let's take stock.

Some unhappy stakeholders. Employers perhaps facing significant premium increases in a down economy. Insurers claiming that they are losing money. Injured workers denied a statutorily mandated benefit adjustment.

It's starting to look like tropical storm time.

Whether this blows on through, or strengthens to a hurricane, time will tell.

Julius Young
www.boxerlaw.com