Sunday, September 30, 2007, 08:15 AM - Political developmentsGreetings again from Anaheim. Little kids wearing mouse ears fill the streets. And lawyers fill the corridors here at the State Bar Convention, taking seminars in topics as wide ranging as "How to Do Business in Vietnam" to "Dealing with Difficult Clients."
It's here that some of the key players in the workers' comp system came, speaking at a Friday morning session. Yesterday's post covered the remarks of acting DWC admin director Carrie Nevans.
Following Nevans was WCAB commissioner Ronnie Caplane. Using a hypothetical about an injured worker, Caplane said that the board is facing upcoming cases with deciding issues that include the following (note: the concepts are Caplane's, but the words are mine):
-does the "Wilkinson" case doctrine survive SB 899? (Wilkinson and the cases that came after it dealt with the rules for rating separate injuries that become permanent and stationary at the same time)
-if there was a prior level of disability awarded under the pre-AMA rating schedule, can that be deducted from an AMA impairment rating? (the apples from oranges issue)
-what exactly is a "high velocity" eye injury? (would a worker who hurts her eye by falling while running qualify?); such an injury is exempted from the 2-year TD cap
-can a defendant deny treatment by his or her own MPN doctor?
-once an applicant succeeds in getting outside an MPN, can (and how) does an insurer get them back in the MPN?
-can there be apportionment to risk factors (for example, diabetes)?
-what are the guidelines for reimburseable costs for DFEC evaluations by vocational experts under the Costa case (i.e., if a worker's attorney hires a vocational expert to rebut the official permanent disability rating schedule and if the costs are to be paid by the insurer, what are the rules?)
-what about the decision in Boughner which found the entire "new rating schedule" arbitrary and inapplicable?
Caplane noted that these are just some of the key issues on the board's plate. She gave no sense of how imminently any of them will be resolved.
The WCAB is facing imminent turnover, however. In about 60 days, commissioners William O'Brian and Janice Murray will be termed out. The terms of Commissioners James Cuneo and Frank Brass end in February 2008; they'll then be able to serve another 60 days. So over the next 4 months or so, expect some major changes.
Stay tuned. In coming posts, I'll be following the fate of the legislation on the Governor's desk, the WCIRB rate hike request, a brief being filed by AARP & ACLU in a risk factor apportionment case, and many other issues you may not find discussed elsewhere. You can subscribe to the blog by using one of the RSS buttons on the bottom right hand corner.
Saturday, September 29, 2007, 09:10 AM - Political developmentsGreetings from Anaheim. The Happiest Place on Earth (Disneyland) is just down the street. It's here that the California State Bar is holding its annual convention.
Carrie Nevans (acting Administrative Director of the California Division of Workers' Compensation) spoke on Friday morning at a seminar here. Here are my notes on some key points made by Nevans:
-the Governor will probably not sign SB 336 (Perata) which raises PD benefits over a 3 year period
-likewise, the Governor will probably not sign AB 1636 (Mendoza) which requires insurers to pay retraining vouchers sooner
-bills likely to get the Governor's thumbs up are AB 338 (Coto) allowing the 104 weeks of TD cap to be used over a 5 year period and AB 1073 (Nava) lifting strict limits on physical therapy for post surgical cases. Nevans indicated that post surgical therapy will be handled by treatment guidelines.
REGULATIONS ON THE REPRESENTED QME PROCESS
Proposed regulations will be unveiled within the next couple of weeks which will address some of the following:
-setting a 30 day time frame for assignment of a panel by the DWC medical unit; also, time limits on determination of the proposed medical specialty and a procedure for appeals
-parties will be allowed to get a QME in a 2nd specialty in cases warranting that
-the regs will address the issue of doctors who have multiple locations
whose names seem to constantly pop up on panels; doctors will have to be available for deposition within a 120 day time frame
REVISING THE PD RATING SCHEDULE
The advisory committee of "stakeholders" (which does include VIAW and the Applicants Attorneys) has been meeting. I did not get a sense of the timeframe for changes, but she noted that likely changes include:
-"restacking" the weighting factors used in rating various body parts
under the PDRS; this would apparently increase ratings for some body parts (spine, hand), leave some unchanged (shoulder), and lower some
-changing the age modifier system in the PDRS. Ratings for workers between age 20 and 55 would no longer have their ratings modified for age and occupation. But there would be revised adjustments for workers under age 20 or over age 55.
-regarding other changes to the schedule, Nevans noted in cryptic fashion that recommendations had been made to the Governor's office
CHRONIC PAIN GUIDELINES
-the DWC will be adopting the ODG guidelines as the applicable standard for treating chronic pain
Nevans' comments were preceded by remarks from Keven Star, the current czar of the workers' compensation courts in California. Kudos to Mr. Star (and DWC consultant Glenn Shor and Deloitte Consulting)) for the progress being made on the paperless EAMS system. EAMS is an acronym for "Electronic Adjudication Management System". It's a huge project built around 4 different database programs, Curam, FileNet, Cognos and CyberSource. The creaky current WCAB system is expected to give way to EAMS on 7/1/08 according to current plan.
That's the report from Anaheim for now. Stop back by tomorrow morning, when I'll be doing a post about the interesting remarks made at the same session by WCAB commissioner Ronnie Caplane. Caplane outlined many of the key legal issues the WCAB is currently wrestling with. See you Sunday back here.
Thursday, September 27, 2007, 08:18 AM - Understanding the CA WC systemThis weekend, the California Applicants' Attorneys Association is sponsoring a seminar about the nitty gritty of law practice under the new workers' comp laws. Entitled "Managing a Successful Practice," the mantra will apparently be "work smarter, not harder."
This comes at a time when significant numbers of attorneys who have represented injured workers are retiring or moving into other legal areas.
What sort of technological fixes and staffing adjustments are attorneys making? How will the WCAB's e-filing system which is being developed change the practice? Is the paperless office on the horizon? What level of service can workers' comp clients expect? How can attorneys service the needs of former clients with old medical awards who are experiencing treatment delays or denials?
Many of the California workers' comp insurance defense firms have made significant shifts over the past few years in order to boost profitability. One prominent firm adopted Dragonspeak and a scanning system in an effort to make major reductions in staff support personnel costs.
Several attorneys I know are uploading their dictation; the audio files are e-mailed and transcribed in places like Nebraska, where labor costs are lower. Or even in Bangalore or Bombay.
Sometimes there can be a separate set of headaches with that. Remember the story that broke a couple of years ago where UCSF medical information being transcribed in South Asia was being made public by disgruntled transcribers?
One defense firm I know is considering going to a host office type arrangement. Instead of having offices and desks, attorneys will be encouraged to work off-site. If they need access to the office, desks will be available on a first-come, first-serve basis. It's about the bottom line, not about the big leather chair and the antique desk.
Our office is unionized, by the way. Our secretarial staff are Teamsters. It always amazes me how union clients don't ask whether their attorney's staff is unionized.
Injured workers have an interest in how all this turns out. There will not be just one model for file-handling, of course. But there will always be a need for quality, individualized representation for workers (and employers, I might add). The trick for many firms will be how to maintain quality, personalized representation on a thinner economic margin.
Wednesday, September 26, 2007, 06:42 AM - Political developmentsDan Walters is one of the most experienced reporters in Sacramento, covering the legislative beat for decades.
Here's his take in today's Sacramento Bee on the likely fate of the workers' comp bills under consideration by Schwarzenegger:
Tuesday, September 25, 2007, 07:38 AM - Understanding the CA WC systemYesterday's San Jose Mercury editorial on workers' comp makes the follwing observation:
"..the Governor must address the fact that the weekly benefits provided to California's permanently disabled workers are the fourth lowest in the nation."
The Merc editorial stopped short of endorsing SB 936, the bill to increase PD rates that currently sits on Schwarzenegger's desk awaiting a veto or signature. But the Merc called for the following:
"Schwarzenegger should commit to re-examining the state regulations that govern workers' compensation and make the benefits for permanently injured workers better reflect the high cost of living in California.
Benefit adequacy. It's something this blog is continually focusing on.
Under the Merc's scenario, Schwarzenegger will veto SB 936. The ball will bounce back to Carrie Nevans and the players in the shadows who determine Schwarzenegger administration policy on these issues.
Who's the "decider"? Perhaps that will include Andrea Hoch, who doesn't appear to have nabbed a Court of Appeal seat yet. Hoch was the architect of the current permanent disability rating schedule that has resulted in a sharp drop in permanent disability payments to injured workers.
The Merc editorial closes with this:
"Insurance companies collect more than $16 billion every year from California employers for workers' compensation coverage, and have been enjoying record profits. Workers deserve a fairer share of compensation costs for on the job injuries."
Click here to see my earlier post "California Workers' Compensation 'Fixed' So That Insurer Profits Are Greater Than Benefits Paid To Injured Workers":
http://www.workerscompzone.com/index.ph ... 0342ae4964
To read the full Merc editorial, click here:
http://www.mercurynews.com/portlet/arti ... siteId=568
Stay tuned. I'm tracking various employment law and workers' comp bills that await action by the governor. Upcoming posts will be examining the two-year TD rule, the friction between California comp brokers and the largest comp insurer, and the recent WCIRB rate increase request.