Greetings 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.

Julius Young
http://www.boxerlaw.com/attorney_bios/julius_young.html
*

Greetings 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:

LEGISLATION
-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
(psyche).
-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.

Julius Young
www.boxerlaw.com
*

Dan 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:
http://www.sacbee.com/111/v-print/story/399241.html

Stay tuned.

Julius Young
http://www.boxerlaw.com/attorney_bios/julius_young.html
*

A late summer Sunday afternoon. In many parts of the state, a hint in the air that the seasons are about to change. It's that time of year when the promise of summer's long, easy days seems to be winding down. Not exactly the time many of us want to ponder the minutia of workers' comp notices.

Yet, for those concerned with such things, this is the time. Should a psychiatric claimant have an absolute right to see the workers' comp QME report used in his case? Should workers' comp notices be published in multiple languages? How many "fact sheets" should adjusters be required to send to claimants? What should the procedures be if an insurer/self-insured employer changes or terminates its network of doctors (MPN)?

These are among the sorts of issues being given consideration by the California Division of Workers' Compensation. The DWC has developed a third draft of these regs, and the second 15-day comment period on these regs ends October 4.

You can see the current version here:
http://www.dir.ca.gov/dwc/DWCPropRegs/B ... ations.pdf

To compare them with earlier drafts, you can visit the DWC website here:
http://www.dir.ca.gov/dwc/DWCPropRegs/B ... ations.htm

Those with comments or suggestions can submit their ideas to:

Maureen Gray (regulations coordinator)
Department of Industrial Relations
Division of Workers Compensation
1515 Clay St. 18th Floor
Oakland, CA 94612

Here are a few thoughts:

The regs need not require a uniform format for benefit notices sent by adjusters to claimants. This is one form of "standardization" that would probably make the comp system run more smoothly. Lawyers and judges must deal with a variety of benefit formats (not to mention a variety of accounting formats).

A larger problem, though, is the one of what medical reports must be provided to the claimant by the claims examiner. Proposed reg 9810 (e)states:

"The claims administrator shall provide copies to the employee, upon request, of all medical reports, relevant to any benefit notice issued, or which are not required to be provided along with a notice and have not yet been provided to the employee other than psychiatric reports which the physician has recommended not be provided to the employee."

What's the problem with this? Let's look at a fairly typical situation. Elizabeth has had knee surgery. Her doctor sees her on a quick visit, says he'll dictate a report to the insurer, and sends her to the front desk to schedule the next appointment. But lo and behold, the doctor's report to the carrier indicates that Elizabeth is released to modified work. Expecting her TD check to pay her rent, Elizabeth receives a TD termination notice instead; the notice indicates that modified work is available and no TD will be paid effective the date of her visit.

No one-neither the doctor nor the insurer-has given Elizabeth a report outlining the doctor's analysis of the modified work restrictions. According to the regs, Elizabeth must ask for the report. A week after getting the benefits notice, she is still trying to get a copy from the doctor or the claims adjuster.

Or take Homer's situation. While Homer recovers from back surgery, the adjuster filed an objection to the treater's report which indicates that Homer is not P&S and in fact is still TTD. The defendant's attorney arranges for a QME, and off to his evaluation goes Homer. About 45 days later, Homer receives a letter indicating that based on the QME report, his payments are ending.

No copy of the report accompanies the benefit cessation letter. Homer's attorney requests a copy from the defense attorney, only to find that the defense attorney does not have one either. The claims administrator has the document, but was not required to send it along with the benefits notice.

And so it goes. Both Elizabeth and Homer are thrown into financial turmoil, not knowing what is being said about them or why they are being cut off of benefits. Is it a wonder that they are angry at the system?

Why don't the regs require the carrier to send, along with the benefit notice, a copy of the medical report or document the carrier relies upon in taking the action detailed in the benefits notice? If this administration won't enact such a requirement, let's hope a future one will.

And while I'm at it, what about access to psych reports? The proposed regs don't make it clear how an unrepresented psych claimant can access the reports necessary to prosecute his case. Does the claimant have a right to demand that the psych report be released to his treating psychiatrist or psychologist? To his family physician? To his guardian (or SSI payee)? Can such a claimant expect to receive the report from a judge at the WCAB? Can the claimant be refused access to the report entirely? Perhaps our society is being influenced more and more by Guantanamo and the secret FISA courts than I'd imagined.

There's much more in the regs worth noting. Policy wonks, start your engines!

Julius Young
www.http://www.boxerlaw.com/news.html
*

Perhaps you're too distracted by news that a Nebraska state senator is suing God (and no, it's not because USC's Trojans just gave the Cornhusker football team a major whuppin' on Husker home turf) to notice other things. But focus for a moment on the strong allegations yesterday from State Senator Sheila Kuehl, who accuses the Schwarzenegger administration of attempting to dismantle the California Fair Employment and Housing Commission (for some background, see my last post).

There's a great article on this controversy by Kuehl in the California Progress report which you can find here:
http://www.californiaprogressreport.com ... ila_1.html

This afternoon, the commission met in San Francisco to vote on whether to fire its lawyers, who have special expertise in employment matters, and replace them with more generic attorneys from the Office of Administrative Law. Civil rights and disability rights advocates see this as a major shift which would allow more administration control over the civil rights agency.

What might otherwise be seen as a bureaucratic turf battle has become embroiled in politics over the independence of the Commission, which oversees the enforcement of California civil rights laws.

This afternoon, the Commission elected to delay a decision. So, no dismantling yet. Several of the Commissioners were in a tight spot. With their terms expiring soon, at least two of the commissioners are in danger of losing their appointments.

The temporary fix? Attorney General Jerry Brown will be asked for an opinion as to whether the Commission can terminate its lawyers. So this controversy dies down for awhile, leaving an opening for the possibility of a politically negotiated solution.

Stay tuned. I'm on the lookout for Governor Schwarzenegger to act on many of the workers' comp and employment law bills that I've been writing about, so check back for updates.

Julius Young
www.boxerlaw.com
*