Thursday, September 30, 2010, 10:50 PM - Political developmentsHere's what I'd like to know.....
Did Meg Whitman pay for workers' comp coverage on Nicky Diaz Santillian, her domestic employee? Santillian served Whitman (and her neurosurgeon husband Griffith Harsh IV) for nine years.
It appears that Harsh blew off a Social Security "no match" letter.
Did they blow off the requirement to carry California workers' comp coverage? One would assume Whitman and Harsh were too savvy to do that, but inquiring minds want to know.
Wednesday, September 29, 2010, 09:57 PM - Political developmentsDoes California really have too much regulation, or not enough?
Meg Whitman's talking points claim that she will reduce regulations. But which ones? The idea of a nanny state is unpopular. But many regulations were developed for a purpose. To promote health and safety. To prevent abusive conduct. To set standards for fair competition.
Buzz words in talking points in a $150 million self funded ad campaign actually tell us little about what regulations Whitman would target.
Would Whitman ease up on occupational health and safety regulations?
If that's her intention, the Schwarzenegger administration will be a pretty hard act to follow.
OSHA enforcement in California has been lax under Schwarzenegger. The department is understaffed for the number of workplaces to be evaluated.
And under Schwarzenegger OSHA board chair Candice Trager, penalties have been minimized.
It's all documented in a Federally mandated review of California's OSHA program just released. The report, examining Cal OSHA in 2009, paints a picture of an agency that is failing to protect workers and failing to get tough on employers who violate safety standards.
Here's a link to the report, prepared by the Department of Labor's Region IX in San Francisco:
http://www.osha.gov/dcsp/osp/efame/ca_e ... ndices.pdf
The report documents many deficiencies in California's OSHA program and demands corrective action.
Concerns included inadequate staffing, deficiencies in the investigative process, failure to properly train personnel, excessive delays between opening investigations and citations, delays in implementing certain regulations, and the failure of the Cal OSHA Appeals Board to interpret "substantial probability" and "serious hazard" in a manner consistent with the Federal OSHA definition.
The latter issue has been very controversial in California, as the business-friendly OSHA Appeals Board (OSHAB) has essentially adopted a sweetheart approach to business violators.
It's a subject I covered some time ago in a post titled "The Problems at Cal-OSHA":
http://www.workerscompzone.com/index.ph ... 122-103155
Let's hope that questioners in the upcoming debates make an effort to pin Whitman down. What regulations would she loosen or curtail? Does she support strong Cal-OSHA enforcement?
It's the flip side of workers' comp. Health and safety regulations can prevent injuries and occupational diseases.
Without many of these regs, workers' comp costs would eventually rise.
Cheers to the Fed OSHA folks for riding herd on the Schwarzenegger rapscallions who would eviscerate OSHA.
Tuesday, September 28, 2010, 10:38 PM - Political developmentsNo surprises here.
Governor Schwarzenegger has vetoed a bunch of comp bills that the legislature had passed.
The stymied bills include the following:
-SB 145 (DeSaulnier)
-AB 933 (Fong)
SB 145 would have proscribed denial of a claim or apportionment to causation based on race, religious creed, color, national origin, age, gender, marital status, sex, sexual orientation or genetic characteristics.
Here's an analysis of the SB 145:
http://www.leginfo.ca.gov/pub/09-10/bil ... floor.html
Proponents of SB 145 may have lost this round. But the logic behind SB 145 is sound, and the argument is appealing. Why in this day and age should the California workers' comp system countenance discrimination of any kind? Are insurers and employers that desperate to gain advantage by apportioning to factors rooted in those characteristics?
Most Californians long for the day when decisions about individuals will not be based on factors based on racial, ethnic or sexual stereotyping.
History will not consider this veto to be one of the Governor's finest moments.
Proponents of this concept will not give up, and some future governor will sign a similar bill.
AB 933 (Fong) would have required in-state doctors perform medical reviews.
A post I did earlier this year, "Keep the Jobs Here", analyzed the issue:
http://www.workerscompzone.com/index.ph ... 624-094020ing
So it's now clear that among the jobs we are exporting are physician utilization review jobs. That's some message to be sending in this poor economy.
Does the employer and insurance community really fear California docs doing UR that much? The fact of the matter is that there are some California based UR firms that use California docs exclusively. Where is the evidence that those firms do a poor job?
Perhaps this veto is a sop to the corporate lobbying efforts of some of the large national firms that do UR?
Schwarzenegger did sign AB 2305 which extends a requirement that roofing contractors obtain and maintain coverage even if they have no employees and requires automatic license suspension for roofing licensees without proof of insurance.
An analysis of AB 2305 can be found here:
http://www.leginfo.ca.gov/pub/09-10/bil ... floor.html
Sunday, September 26, 2010, 03:13 PM - Political developmentsWell-deserved accolades were given this weekend in Monterey to some of California workers' comp's brightest stars.
The occasion? The awards ceremony sponsored by the Executive Committee of the bar's Workers' Compensation Section. Held each year at the time of the state bar convention, the awards ceremony is a way for the workers' comp community to honor exceptional achievement.
This year's winners are truly distinguished. Here are some comments on the four winners:
Applicant Attorney of the Year: Marc Marcus
Marcus, a longtime Sacramento partner at Marcus and Regalado, is respected for his combination of smarts, passion, and tenacity. Active in the California Applicants Attorneys association in educational, legislative and amicus efforts, Marcus is truly one of the leading applicant attorneys statewide. Marcus argued the winning position in the Duncan/XYZZZ case involving COLA calculations (a case now pending at the California Supreme Court).
In remarks to the attendees, Marcus acknowledged both the difficulties and the triumphs of the applicant bar in the wake of SB 899. Never one to paper over his fiery opinions, Marcus noted that he was no fan of insurance companies. If there was anyone in the audience in doubt, it became clear that Marcus was a symbol of an applicant bar committed to the cause of justice for individual workers.
Marcus noted that his son has now joined him in the comp practice. The torch goes on.
Defense Attorney of the Year: Michael Marks
Marks also started his career in Sacramento, but it took a different trajectory. Early in his comp career Marks was an associate attorney at
Sacramento's Green and Azevedo, later forming a leading defense firm in San Francisco with James Finnegan. Marks has retired from the firm (now known as Finnegan, Marks, Theofel & Desmond) and now resides in Vermont.
But Marks has not retired from comp. Marks has been very active in appellate work and behind the scenes analysis for a number of insurance and employer groups. His hand is behind many of the key theories and arguments advanced by those groups in post-SB 899 litigation.
He may be spending much of his time driving a tractor or boiling maple sap to make syrup, but Marks has maintained a very distinguished role at the heart of debate about the future of California workers' comp
I've known Marks since our careers launched around the same time in
Sacramento (at the time I was representing applicants with Eugene Treaster, right across Sacramento's J Street). Over the years I've butted heads with him, and I can tell you what many will say: Marks is one of the most brilliant attorneys that have ever practiced in the system.
In remarks to the Monterey gathering, Marks acknowledged how much he learned from many of the other brilliant figures who trained or inspired him. Specifically, Marks acknowledged applicant attorneys Art Azevedo, Don Green, Lowell Airola and Maurice (Yank) Marcus. Noting his mentors on the defense side, Marks named Ted Niedermuller, Gordon Taylor, Mike Laughlin, and Jim Finnegan.
Judge of the Year: Jorja Frank
Judge Jorja Frank, presiding judge at the Los Angeles WCAB district office, was named judge of the year.
After a career as a comp defense attorney and a stint as a WCJ at the Marina Del Rey office, Jorja Frank took the position as PJ at the Los Angeles board in 2008.
A board sited in downtown LA, the Los Angeles board has had more than its share of troubles. Calendar delays, poor staff morale, and a volume of liens choking the system have been just a few of the challenges at this large, inner city board.
Judge Frank has been noted for her success in turning around the LA board. Morale has improved, innovative efforts to deal with lien claims have been undertaken, and a troubled office has been given the leadership it so badly needed.
I'd never seen Judge Frank before. Frank, a charming and soft spoken blonde whose surface appearance is more Newport Beach than downtown LA , came across in her remarks as the very antithesis of a leader who survives on fear and intimidation. Rather, Frank has apparently succeeded so far by taking a new approach as a motivator and advocate for a new vision of what is possible.
That's an impressive example for others to follow.
Lifetime Achievement Award: Pamela Foust
Claiming the lifetime achievement award for her career in California workers' comp was retired workers' comp judge Pamela Foust.
Foust has been a fixture in Southern California workers' comp circles for years, serving as a judge at the Santa Monica board for many years.
The author of a treatise on handling liens, "California Lien Claims in Workers' Compensation Cases", Judge Foust has been a much sought after educational panelist. After retiring from the WCAB, in 2010 Foust joined Zenith Insurance Company as a consultant.
Although I've never met Foust, I've long admired her work. I was a big fan after reading a piece she wrote some years ago entitled "Good Business Sense". Really its a fable on a system in which every stakeholder acts out of self-motivation for their own good business sense, resulting in some marked systemic excesses. As an opening quote to the fable noted, systemic abuses can degrade character. The fable begins "Once upon a time there was a machine operator who worked for a small fabrication shop..."
For those not familiar with the fable, here's a link to a portion on workcompcentral.com:
http://www.workcompcentral.com/signup/n ... 8xy53y11vp
In her remarks, Foust mused on the pleasures of practicing in the comp community. In many areas of law the attorneys and judges encounter each other only very rarely. As Foust noted, by the time tort or transactional attorneys see each other again years may have gone by.
But in comp it's different. Foust noted that lawyers and judges encounter each other again and again, sometimes for decades. We see marriages bloom or fail and kids grow up.
In being honored herself, Foust honored the legal community from whence she came.
I've covered these events for the blog before. What never ceases to amaze though is the quality of the people who win these awards. I'm well cognizant that in some quarters workers' comp lawyers are regarded dismissively.
That our little corner of the justice system produces winners like these shows that there's a lot more to our practice than many might think.
My term on the workers' comp executive committee is up, but I'd like to thank outgoing chair Gary Nelson of Modesto and incoming chair Lisa Ivancich of Antioch for putting together such an excellent event.
Wednesday, September 22, 2010, 10:45 PM - Political developmentsIn my last two posts I've commented on the concern that business is fleeing
California because the state is not seen as "business friendly".
One post was "Business Leaving California":
http://www.workerscompzone.com/index.ph ... 918-091812
Another post examined the arguments by a business relocation coach,
"Should I Stay or Should I Go?":
http://www.workerscompzone.com/index.ph ... 921-083612
There's now even more in-depth data to show that the claim of mass business exodus is false.
Today the Public Policy Institute of California issued a report on new data that undermines charges that business is leaving California in droves.
It's worth observing that the PPIC is highly respected for the quality of its research and non-partisan nature. It's also notable that its Board of Directors includes several prominent Republicans and a number of prominent CEOs.
Examining the data, the PPIC report reveals that the majority of California job losses are local business reductions, not job losses caused by businesses leaving the state. Indeed, it seems that relocation is a smaller share of job losses and gains in California than in other states.
You can find the September 2010 study by Jed Kolko here:
Here are some significant quotes from the report:
"Few businesses move into or out of California. From 1992 through 2006, about 16,000 jobs annually moved into California and about 25,000 jobs annually moved out of California. The annual net employment change in California due to relocation—a loss of about 9,000 jobs—represents only 0.05 percent of California’s 18 million jobs.1 Most employment gains and losses are the result of other factors. Jobs are gained due to births of new establishments, expansions of existing establishments, and the in-migration of establishments to the state (only 1 percent of all of the job gains in California from 1992 through 2006 were due to the relocation of businesses into the state). Jobs are lost due to closures of existing establishments, contractions of existing establishments, and the out-migration of establishments from the state (only 1.7 percent of all job losses in California from 1992 through 2006 were due to establishments leaving the state). In fact, as shown in Figure 1, throughout all of the ups and downs of the business cycle, only a small fraction of the state’s job losses are due to businesses leaving the state. Between 1992 and 2006, jobs leaving the state never accounted for more than 2.3 percent of job losses in any given year."
The report also examines job losses by movement within California:
"Most business relocations occur within rather than across states.2 But even in the case of cross-county moves within a state, relocations account for only a small share of job gains and losses. Across all counties in California, within-state relocation across county lines accounts for just 4.2 percent of job gains and losses."
None of this is to say that job losses-when they occur-aren't significant.
Mass layoffs and outsourcing (like those done by Carly Fiorina while she was at H-P) can be devastating.
It's also not to say that there are no examples of companies who made decisions based on the California regulatory environment. I don't doubt that this figures in some employers' calculus. After all, some employer perceptions are fed by folks like the "relocation coach".
But those politicians who claim that there's statistical proof that business is leaving California en masse because of environmental regulations or workers' comp costs appear to be spinning the facts for their own political purposes. The numbers don't back up their claims.