Thursday, September 3, 2009, 05:10 PM - Opinions and DecisionsToday the WCAB issued revised en banc decisions in the Almaraz/Guzman cases and in Ogilvie.
In a nutshell, the WCAB has substantially trimmed its prior expansive opinion in Almaraz/Guzman. Doctors will now not be free to go beyond the AMA guides. But they will be able to analogize and use various parts of the guides.
It appears that in Ogilvie the WCAB largely retained its prior analysis. The schedule is still rebuttable, but there are limitations on how that can be done. As before, Commissioner Caplane dissented.
I'll be doing more detailed analysis in the coming days. Meanwhile, here is a link so you can download the decisions yourself:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf
As with prior decisions, there is always a note of caution. These decisions have such wide import that it's almost certain there will be appeals filed.
Wednesday, September 2, 2009, 10:50 PM - Political developmentsAn important new UCLA study presented today documents a disturbing pattern of abuse of low age workers.
The study, done by the UCLA's Institute for Research on Labor and Employment (in conjunction with the National Employment Law Project), was funded by a number of foundations. Just under 5,000 low wage workers in New York, Chicago and Los Angeles were carefully interviewed.
Workplace violations were noted to be widespread. 26% of the workers were paid less than the minimum wage. Violations of overtime laws, meal break requirements , and unlawful pay stub deductions were rife. Violations varied by industry, but were particularly rife in the apparel and textile industry. Results in the construction industry were somewhat better, with restaurants and retail being better than in the apparel industry.
But what about workers' comp? 43% of the low wage workers surveyed had been required to work despite an injury. 13% had been fired after reporting an injury. 4% noted that after they reported an injury, the employer threatened to report them to immigration authorities. 3% noted that they were told not to file a claim.
Of the workers who received medical treatment for an injury, 33% had to pay out of pocket for their own treatment. 22% used their health insurance rather than pursue treatment under workers' comp.
Even if statisticians quibble with any particular finding, the overall picture is disturbing. Low wage workers have limited bargaining power and are often at the mercy of employers who bend the rules.
Clearly, costs are being shifted onto the public sector. The taxpayer ends up paying for health care at public hospitals and clinics that should have been provided by workers' comp.
It's a reminder that special attention should be paid to the problems encountered by low wage workers in the comp system.
You can read the study for yourself here:
It's notable that the authors of the study thank a number of Northern California folks for assisting in the study. These include Worksafe attorneys Danielle Lucido and Fran Schreiberg , UC Berkeley researcher (and CHSWC consultant) Juliann Sum, and former Cal Labor Fed official Tom Rankin.
Among the Southern California authors were Ruth Milkman, Professor of Sociology at UCLA, along with Victor Narro, Director of the UCLA Downtown Labor Center, and Anna Luz Gonzalez, a doctoral student in urban planning at UCLA.
Sunday, August 30, 2009, 04:55 PM - Political developmentsIn an otherwise sleepy legislative session for workers' comp issues, there's an end of session drama unfolding.
The issue was scooped last Friday by Workcompcentral.com, in an article by Workcompcentral reporter Jim Sams. Workcompcentrtal has obtained a copy of a document (written on the letterhead of CHSWC, the Commission on Health, Safety and Workers' Compensation) which apparently details a "grand bargain" type compromise that would make system cuts to achieve savings. The goal would be to create savings in order to restore some of the PD benefits cut after the 2004 reform and 2005 PDRS.
I say apparently because I personally have yet to see the document. But I do have reason to believe that the document is or will be making its way into the possession of major comp system stakeholders.
What's unknown at this point is how many of the key stakeholders are willing to line up behind this proposal, and what the legislative leadership's position is on a last minute deal. Major legislation sometimes emerges under cloak (for you Star Trek fans), and can sometimes be well down the track before the word gets out.
Would the Democratic legislative leadership prefer to wait in hopes that there will be a Democratic governor in another year?
According to the workcompcentral piece, the key players have been Sean McNally (formerly an attorney with Hanna and Brophy and currently an officer of Grimmway Farms and currently chair of CHSWC) and Angie Wei of the California Labor Federation, also an appointee to CHSWC.
Interestingly, according to the workcompcentral piece, CHSWC executive director Christine Baker was said to have denied knowledge of the document on CHSWC letterhead.
According to workcompcentral, the compromise would place limits on lien filings. In Southern California in particular, lien claimants are a major factor in the system. There would be a paper independent medical review system to review UR denials, apparently similar to the process used in managed care for group medical care systems. I have to assume that this would create a system bypassing the QME determination on UR denials that was endorsed by the California Supreme court in the Sandhagen case.
Ambulatory surgery fee schedules would take a hit. The supplemental job displacement voucher would be eliminated. The 15% PD bump up/down would be eliminated.
Workcompentral noted that the proposal seemed to call for indexing PD to a target earnings loss formula. Apparently the PD schedule would be
Exactly what other procedural and substantive changes are under consideration isn't known (it's worth noting again that I have not seen the document, which may be a work in process).
It's quite possible labor would want the governor to sign a bill extending predesignation.
And since the Almaraz, Guzman and Ogilvie cases could be re-decided by the WCAB any day now, it's possible that the proposal under discussion could contain language which would change or moot those
We'll probably be learning more in the coming days.
Saturday, August 29, 2009, 12:33 PM - Political developmentsWhether you are a worker, a lien claimant, an attorney or an adjuster, you rely on that part of the workers' comp community that works at the WCAB district offices.
These are the people who find the files, process the mail (or interface with
EAMS), take the phone calls, transcribe the letters and rate the cases. And yes, these are the people who also decide the cases (the workers' comp judges).
If you're detecting a little more signs of stress at the WCAB or an occasional snarl at your requests, consider the financial and morale effect of the furloughs. With an effective 15% pay cut, some of these workers find their financial lives out of whack.
Here's a piece by Shane Goldmacher in the Los Angeles Times examining the situation some state workers find themselves in:
http://www.latimes.com/news/local/la-me ... ?track=rss
Thursday, August 27, 2009, 10:00 PM - Political developmentsInsurance Commissioner Steve Poizner has announced that tomorrow he'll be filing a lawsuit to block the sale of State Compensation Insurance Fund assets.
Here's Poizner's press release:
http://www.insurance.ca.gov/0400-news/0 ... 129-09.cfm
Politically, this is an interesting play. It puts gubernatorial hopeful Poizner at odds with Schwarzenegger, whose administration cooked up the questionable SCIF sale idea.
Poizner gets to play the grownup to Schwarzenegger and a hapless legislature who went along with the SCIF sale idea in a desperate attempt to appear responsible in addressing the budget crisis. The high profile nature of the issue is good news for Poizner, who is lagging in early polls behind GOP hopeful Meg Whitman.
Here are links to some earlier posts I've done on the SCIF sale issue:
"Sacramento Bee: SCIF Asset Sale Likely to Fail""
http://workerscompzone.com/index.php?en ... 821-080037
http://workerscompzone.com/index.php?en ... 623-211148
One great thing about the lawsuit is that we'll probably start to learn more soon about the behind the scenes maneuvering for a SCIF asset sale.
I've been to several recent events recently that were attended by legislators who voted for the budget ( which included $1 billion budgeted for a SCIF asset sale). When I asked the legislators for some details on the plan and due diligence type information, their eyes glazed over.
I won't name any names, but it was apparent that legislators who voted for the budget with SCIF sale included weren't very well informed on the issue. Further, it was clear that they didn't have much confidence in this provision surviving.
Thanks to Commissioner Poizner for taking on this issue.
Stay tuned. I'll be blogging soon about a RAND presentation on return to work statistics that was presented at today's CHSWC meeting in Oakland. And I'll be reflecting about the 2nd DCA case which further confirms that voc rehab is gone.