Sunday, September 9, 2007, 10:22 PM - Vocational retrainingAB 1636 passed the California Senate on September 7 and appears headed toward the Governor. The bill would expedite the provision of a retraining voucher to injured workers who have been determined unable to return to work.
If the worker does not return to work within 60 days of being found permanent and stationary, a retraining voucher would be due within 74 days after the date the worker was determined permanent and stationary.
You can see a pdf version of the bill by clicking here:
http://www.leginfo.ca.gov/pub/07-08/bil ... en_v97.pdf
This bill would apply only to injuries after 1/1/08, thus offering no assistance to workers with current pending claims.
California's injured workers lost their rights to a full vocational retraining program in 2004. Prior to reforms in the early 1990s there was no set dollar limit on vocational retraining programs. Reforms under Governor Pete Wilson provided a $16,000 cap on vocational retraining benefits (including the weekly voc rehab maintenance allowance payable during a retraining program). And under Governor Schwarzenegger, injured workers lost their rights to a retraining program. Instead, the law now provides a "job displacement voucher"
worth between $4,000 to $10,000 for workers unable to return to work.
AB 1636 would speed up the process of getting a voucher into the hands of workers. The idea is that injured workers need to use the voucher as soon as possible to take classes at state accredited schools. Although better than nothing, in practice, the voucher usually is "too little, too late."
Many workers who need to retool their careers will require much more training than the vouchers will finance. And, unlike the old retraining benefit, the voucher does not address living expenses while the worker takes classes. Unfortunately, the rent and grocery bills continue.
But hats are off to Voters Injured at Work www.viaw.org, which has worked hard to push this bill. The bill never made it onto the California Chamber of Commerce job killer list. Let's hope this is a bill that runs the remaining gauntlet past the Governor's veto pen.
Thursday, September 6, 2007, 10:12 PM - Political developmentsFast and Furious. And I don't mean the Vin Diesel movie of 2001 (which happens to be the last film I saw at a drive-in).
No, I'm talking about the fast and furious pace of legislative activity in Sacramento as the legislature moves to a close of the session. A number of workers' comp bills are awaiting passage (or death) in the next few days.
But there have already been some important employee-rights bills passed over the last few days. AB 435 (Bromley) addresses the time limits to bring discrimination lawsuits in gender pay discrimination cases. AB 435 is California's answer to the U.S. Supreme Court decision in Ledbetter v. Goodyear Tires. You can read my earlier post on the Ledbetter case, "Leadbelly Blues," by clicking here:
http://workerscompzone.com/index.php?en ... 603-162015
SB 727 (Kuehl) would expand eligibility for state disability benefits to workers who take leave from work to care for a grandparent, grandchild, brother, sister, or parent-in-law. It's a family values bill if ever there was one. Of course, that didn't stop 23 Republican members of the California Assembly from voting against it. I guess their allegiance to the California Chamber of Commerce is stronger than their allegiance to family values.
So these bills go on their way to the governor. You can access their text at www.leginfo.ca.gov. It will be interesting to see if Schwarzenegger shows signals of independence from the CalChamber crowd by signing these bills.
Check back here for more coverage. You can also follow many of the breaking developments in Sacramento by checking out the excellent blog hosted by Oakland journalist Frank Russo, www.californiaprogressreport.com. Frank is in Sacramento this week covering much of the action.
Tuesday, September 4, 2007, 09:39 PM - Opinions and DecisionsOne of the consequences of the 2004 California workers' comp reform has been the shrinking of the pool of attorneys representing claimants. Experienced attorneys have been closing up shop, and there is barely a trickle of new attorneys coming into the applicant-side practice.
As with treating doctors, there is anecdotal evidence that in many areas of the state workers are having a hard time finding representation.
Can a worker seeking representation enter into a contract to pay hourly fees to an attorney? No, unless the fee agreement is approved by the workers' compensation judge.
The 3rd District California Court of Appeal has just released an opinion in a case dealing with that situation. The case, Fred Vierra v. WCAB and Collins Pine Co., can be seen in .pdf format here:
http://www.courtinfo.ca.gov/opinions/do ... 054091.PDF
In Vierra, the 3rd District court upheld a WCAB decision that the fee agreement was unenforceable, the WCAB had not approved the agreement which called for hourly fees.
Apparently Vierra was fighting to maintain a six-figure permanent disability award. The insurer had petitioned to reduce the award. Presumably the insurer was represented by lawyers either in-house (on the payroll) or on the meter (paid by the hour).
Couldn't Vierra defend himself and his award by hiring an attorney to be paid by the hour? If the carrier can pay for representation, why can't Vierra?
Not gonna happen. Not at least in the manner Vierra's counsel drafted the fee agreement. WCAB approval was necessary to make the agreement valid.
However, Vierra does not indicate that all agreements calling for hourly fees are improper. The court's decision seems to recognize that hourly agreements might be appropriate within the context of factors the WCAB can consider.
The problem with the court's opinion? In Vierra the court says that "once the services are rendered" the WCAB may "approve, reduce or increase the fees provided for in the agreement." Clearly any attorney rendering services does so at his own risk.
If Vierra's attorney had unsuccessfully fought the petition to reopen, would the WCAB have approved the hourly fee agreement? Probably not, and therein lies the problem. Without pre-approval of fee agreements, many workers in Vierra's situation will have trouble finding counsel. Under Labor Code 5710, Vierra would be entitled to have attorney fees paid for attendance at his own deposition. But if the attorney was required to depose doctors, write letters to doctors, attend conferences and trials, etc., the attorney would have no guaranteed source of compensation for the services.
The Vierra decision does not appear to automatically preclude WCAB approval of fees even if the results obtained were unsuccessful. But the decision hardly inspires confidence in the applicants' bar that such hourly fee agreements will be honored.
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Monday, September 3, 2007, 10:03 AM - Understanding the CA WC systemIt's been a strange summer. NFL star involved in dogfighting. Hypocritical family values U.S. senators trolling for sex whereever they can get it. The Taliban re-surging, and nuclear-armed Pakistan looking ever more unstable. Art-house cinema director greats Michelangelo Antonioni and Ingmar Bergman dying on the same day. An arsonist burning Burning Man so he had to be rebuilt to be burned properly. A small band of California GOP legislators thumbing their nose at Schwarzenegger for six weeks before giving him a budget.
Labor Day today marks the demarcation as we head in a few weeks into fall and another season of Cal and UCLA chasing USC.
Thank you to all of the workers who keep our state running.
And thank you to all of the injured workers who have so inspired me over the years. Many of these workers have shown tremendous courage in their struggles to deal with physical and emotional disability that resulted from workplace accidents. Today I acknowledge your struggles, and I salute you.
Sam Gold is an injured worker-turned activist. Take a look at his editorial on today's California Progress Report:
http://www.californiaprogressreport.com ... t_the.html
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Saturday, September 1, 2007, 10:37 AM - Political developmentsThe real drama in Sacramento right now is on the health care reform issue. Because the negotiations among the "Big Five" (Schwarzenegger, Perata, Nunez, Villines and Ackerman) on this issue are behind closed doors, it's hard to sort out the smoke and mirrors.
Only a few days ago Assembly Speaker Nunez threatened to bring Schwarzenegger's healthcare proposal to a vote. That would have surely resulted in a resounding vote against Schwarzenegger's plan. Nunez didn't hold the vote, but made his point. Since Schwarzenegger is unlikely to get much Republican support for health care reforms, the best prospect is for a deal between the governor and Democratic majorities in the California Assembly and State Senate.
Today's Los Angeles Times article by Jordan Rau suggests that a deal may be brewing. The deal would involve passage of a bill enacting a plan requiring all Californians to have health coverage. There would be subsidies for persons unable to afford coverage, and there would be a mandate for employers to contribute. Insurers would be prohibited from cherry picking which individuals to cover.
But how would this be financed? For months there has been uncertainty over how this can be done. Schwarzenegger wants to impose fees on hospitals and doctors, but this is probably a tax which would require a 2/3 vote in the legislature. And as the 6 week budget delay has shown, legislative Republicans have an effective veto over any issue requiring a 2/3 vote.
So the plan being floated would involve an initiative on health care financing for voter approval. The initiative would ask for voter approval of a sales tax, an employer contribution mandate, and a tax on hospitals. The voters could decide how badly they want to fix the broken health care system. One in five Californians have no insurance.
This emerging deal could collapse, of course. I remember being at the Capitol in May watching legions of well heeled health care industry lobbyists working the halls. Never count them out.
Many injured workers have no health insurance. So, as they say, injured workers "have a dog in this hunt".
Rau's L.A. Times piece can be seen here:
http://www.latimes.com/news/local/polit ... 1726.story
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