Sunday, October 30, 2011, 09:24 PM - Political developmentsOutside my office, the Occupy Oakland tent city is back.
Efforts to forcibly evict protesters from Frank Ogawa Plaza created a public relations debacle for Oakland's mayor and police when a protesting Iraq vet was tear gassed and critically injured by some sort of projectile from police.
As I noted in a post last week, the Occupy Oakland movement is a mixed bag. There are protesters with serious ideas and serious grievances. And there are others with goofy ideas and flaky politics.
Many of the protesters seem unable or unwilling to understand that John Boehner's crowd controls the U.S. House. If the Congress was full of Rachel Maddows, Michael Moores and Keith Olbermanns, the story would be very different.
This week the protesters hope for a November 2 mass strike and plan a march on the Port of Oakland. A communique from the movement threatened corporations that do not shut down, noting that "we will march on you".
Here's an assessment of their efforts and the challenges the movement faces in a piece by Joe Garofoli in the San Francisco Chronicle, " Big Challenges for Occupy Movement":
http://www.sfgate.com/cgi-bin/article.c ... &tsp=1
As it was with the Tea Party's surge in 2010, whether these efforts will attract long-term mainstream support or whether they will fizzle is unclear.
But what about the underlying grievances?
Comparing various categories, how in the U.S. doing with social justice?
Not so well.
Here is a link to a study of how various countries stack up in overall poverty rates, child poverty, senior citizen poverty, primary education expenses, income equality, and healthcare. I invite you to look at the chart, which was noted by Charles Blow in a recent New York Times op-ed piece:
http://www.nytimes.com/imagepages/2011/ ... ef=opinion
If measured by whether they are proposing workable solutions, the Occupy movement is a failure. But to the extent that the Occupy movement is raising awareness of problems in our country, they are performing a service to our system.
It's hard to maintain belief in "American exceptionalism" if we are exceptionally bad in so many key categories.
Wednesday, October 26, 2011, 09:33 PM - Political developmentsThe California Supreme Court has now rebuffed the City and County of San Francisco's bid to overturn the Ogilvie case.
In a move widely anticipated, the Supreme Court refused to grant review.
With S.F. City Attorney Dennis Herrera's mayoral campaign stumbling and Herrera's complex litigation deputy attorney Danny Chou's efforts in Ogilvie being rebuffed, it was not a good day for the City Attorney's office in the city by the bay.
So unless and until another Court of Appeals panel renders a decision that conflicts with the decision of the California Court of Appeals First District, that court's Ogilvie decision is the law. The case heads back to the WCAB trial level, however, and it's quite possible that we will see the issue eventually go back up to the WCAB en banc and through the appellate process again.
That could take years.
Meanwhile, the City and County of S.F. may have done a favor to applicants by taking the issue to the California Supreme Court, giving the issue a patina of finality for the forseeable future.
These developments are a cause for celebration for applicant attorneys and a bitter pill for defendants.
Applicant attorneys hail the decision of the First District in Ogilvie which seems to open several broad doors to rebutting the PD rating schedule.
And that's in addition to language in the 6th District Court of Appeals Guzman decision which allows rebuttal of the strict American Medical Association Guidelines impairment rating in some instances.
We'll now enter a period where-in some cases- vocational experts formulate rebuttal arguments to the rating.
Exactly how this is permissibly done, and under what circumstances, will be the fight.
Is it the end percentage of the rating string which is being rebutted? Or the "FEC factor"?
Is it true that there is no meaningful difference between "inability to compete in the open labor market" and lack of an "earning capacity"?
Where does Labor Code 4662 language about "permanent total disability according to fact" fit into all of this?
And what methodologies used by vocational experts will pass muster?
How will similarly situated workers be identified, and what periods of wage loss will be compared?
The costs of these evaluations-who pays and when-will continue to be an issue. As will the costs to the system if litigation costs spiral out of control.
But one thing is sure. There are some injured workers out there who will receive awards that will be positively affected by the decision.
Again, the California courts have interpreted the law in a way to allow some flexibility rather than in a cookie cutter justice manner.
Tuesday, October 25, 2011, 08:28 PM - Understanding the CA WC systemTemporary disability minimums and maximums will increase in 2012 for some California workers.
It's due to an ongoing bright spot for injured workers in California's system, Labor Code 4453(a)(10).
TD maximums and minimums are adjusted yearly based on the percentage increase in the state's average weekly wage. The TTD maximum will now exceed $1,000 for the first time.
Now at $986.69, the maximum will increase to $1,010.50. Not all workers receive maximum, however. That's because TTD is based on 2/3 of the worker's average weekly wages.
This will affect workers injured in 2012 and, under Labor Code 4661.5, workers who continue on temporary disability after two years.
California now has a patchwork of rules regarding how long workers can draw temporary disability.
Workers injured after January 1, 1979 but before April 19, 2004 may potentially receive many years of TD payments. But workers injured from April 19, 2004 to January 1. 2008 can receive no more than 104 weeks for a single injury unless they come within certain exceptions:
-Acute and chronic Hepatitis B or Hepatitis C
-High-velocity eye injuries
-Chemical burns to the eyes
-Chronic lung disease
And the 104 week temporary disability limit is measured from the date TD "commenced" for workers injured between April 2004 and 1/1/08. Those workers will not benefit from increased TD maximums since by definition they can not benefit from Labor Code 4661.5.
Workers injured after 1/1/08 can (if medically indicated) draw temporary disability for up to 104 weeks over a 5 year period, however. So those workers will benefit from increases in the TD maximum, since via Labor Code 4661.5 their TD rate can be adjusted upwards when they are paid TD more than two years after the date of injury.
A bill to extend TTD eligibility for workers who require surgery beyond the 104 week limit was vetoed in 2011 by Governor Brown.
TD minimums will also be adjusted in 2012. Currently the minimum is $148 per week. For 2012 injuries the minimum will be $151.57 per week.
Changes in the state average weekly wage have varied over the years. In 2005, the SAWW increased by 1.9%. In 2006 it increased by 4.01%. In 2007 the increase was 4.959% and in 08 by 3.932%. The SAWW changes affect TD maximums and minimums, which then affect the amount actually paid out.
Changes in the SAWW (state average weekly wage) may also affect some workers injured after 2003 who are eligible for "life pensions" (i.e.70% to 99% ratings) or who are permanently totally disabled (;i.e. 100% on an industrial basis). Under Labor Code 4659(c), COLAs in a life pension or permanent total disability case apply to payments themselves rather than to the maximums/minimums.
Tying TD and COLAs to changes in the SAWW has been very beneficial to many workers, though the recent Baker v .WCAB decision will limit the positive impact for some workers who have permanent disability awards between 70 and 99%.
Many of the maximums and COLAs calculations are complicated. Even experienced attorneys may overlook nuances of some of these concepts.
Here is the DWC press release announcing the new rate adjustments:
http://www.dir.ca.gov/dwc/dwc_newslines ... 44-11.html
Monday, October 24, 2011, 09:43 PM - Political developmentsBetween the BART stop and Oakland's Workers' Compensation Appeals Board now lies Occupy Oakland.
On one of the Bay Area's beautiful balmy Fall days, one could look at the colorful tent encampment and think it was a REI convention or a Boy Scout jamboree.
Passing by the encampment on the way to the WCAB, one sees broadcast trucks, lines of porta-potties, and lots of handmade signs.
It's quickly apparent that the Occupy Oakland encampment has a broad agenda. Workers' comp wasn't on the list.
A block away, outside the Oakland WCAB sat a handful of disgruntled injured workers, displaying large hand-lettered signs detailing their grievances. They seemed to have little interest in merging with the Occupy Oakland crowd down the street.
Among the more interesting slogans on Occupy Oakland signs observed in a quick walk around the perimeter:
-"Back to the Feudal System?"
-"Robin Hood Was No Lobbyist: Direct Action Gets The Goods"
-"If They Can Bail Out the Bankers, They Can Bail Out Us. No Foreclosures"
-"I Demand Safety For Everybody"
-"Fight The Power! Take It All Back"
-"No More Federal Reserve Bank"
-"Audit the Fed! It's No More Federal Than Federal Express"
-"First Amendment Guarantees The Right To Peaceful Assembly"
-"Keep Poison Out of Food"
-"One With Everything"
-"Impotent Workers and Jobless"
Is the Occupy Movement the beginning of a new era of worker activism against economic injustice? Or is the energy too diffuse, the message too unclear, and the group too populated by fringe wing nuts?
Wednesday, October 19, 2011, 09:36 PM - Understanding the CA WC systemThe California Supreme Court has spoken again about COLAs.
Call it Baker Redux.
In response to a Petition for Rehearing filed by San Jose attorney Arthur Johnson, the California Supreme Court issued a modified opinion that can be found here:
http://www.courtinfo.ca.gov/opinions/do ... 79194M.PDF
Johnson's Petition for Rehearing had noted that the Baker decision, issued in August 2011, used the term "seamless transition" in reference to the transition from temporary disability benefits (which have a COLA under Labor Code 4453) to permanent total disability benefits (which have a COLA in certain circumstances under Labor Code 4659(c).
Johnson noted that after SB 899 there is a 104 week cap on temporary disability. Some claimants may not be permanent and stationary for years once the 104 weeks of TD has been paid out. Under Johnson's argument:
"This situation would then mean that two claimants equally disabled at 100%, but who become permanent and stationary at different dates, would have dramatically different pay-out rates over their lifetimes. If a person for example, fell and was paralyzed from the neck down (such as Christopher Reeve), became permanent and stationary immediately, the temporary disability would end immediately and permanent total disability benefits would begin immediately and a total disability COLA would apply to January first following the date of injury."
Continuing, Johnson noted that:
"However, if a similar injured worker fell and sustained multiple internal injuries with broken bones, and took ten years to heal before becoming permanent and stationary, that injured worker would receive 104 weeks of temporary disability and then temporary disability would stop. Perhaps permanent disability "advances" would be made at a partial disability rate, as we often now see in practice. Perhaps not. If and when the claimant was found to be 100% totally disabled, the total permanent disability payments would revert back to the last payment of temporary disability, two years following the date of injury pursuant to L.C. 4659(b). However, pursuant to the terms of this decision, the COLA would have "flat-lined" for the 10 years it took to become permanent and stationary."
In essence, Johnson argued that the Supreme Court's decision ignored the realities of workers' comp, discriminating against injured workers whose disabilities do not become permanent and stationary for many years.
But now we have Baker Redux.
Apparently tacitly acknowledging some of Johnson's argument, the court added a new footnote to its opinion:
"On page 439, in the paragraph carrying over from page 438, a new footnote 2 is added following the clause “i.e., the permanent and stationary date in the case of total permanent disability benefits, ” stating: “Our discussion of total permanent disability benefits pertains only to those payable for injuries occurring before April 19, 2004. For later injuries, it may be that an injured worker would become entitled to total permanent disability payments, and corresponding COLA’s, before the worker’s medical condition is permanent and stationary. (See §§ 4650, subd. (b) & 4656, subd. (c).) We express no view on that question, which is not presented under the facts of this case.”
This would seem to leave open the issue of COLA calculation start date in a case where the worker is likely 100% even if the worker is not yet deemed P&S.
Advantage Arthur Johnson.
Baker Redux may not prove to be the California Supreme Court's finest hour.
The Court's modified opinion in Baker Redux has now given us this:
"On page 446, the third and fourth sentences in the first full paragraph on the page are replaced by the following: “Moreover, workers who sustain industrial injuries qualifying them for total permanent disability payments receive temporary disability payments which, depending on the date of injury, may themselves be indexed to the SAWW, thereby protecting the worker from the effects of inflation during the period of eligibility for temporary disability benefits. (See §§ 4453, subd. (a)(10), 4653, 4661.5.)”
But as my fellow CompGuys.org commentator Jake Jacobsmeyer has noted, it appears that the Supreme Court is confused. Jacobsmeyer noted in an e-blast tonight that "to some extent the Court's language suggests a lack of understanding of some aspects of workers' compensation".
Specifically (and I think correctly), Jacobsmeyer noted that:
"The minimum and maximums for TTD are indexed under Labor Code § 4453(a)(10) but injured workers only receive the benefit of such indexing to the extent earnings support the increases but TTD itself is not indexed to the COLA. Additionally since Labor Code § 4661.5 does not affect any benefits until 2 years after the date of injury, the Courts observation that IW are protected from inflation based on increases in TD under Labor Code § 4453, subd. (a)(10), 4653 & 4661.5 does not appear accurate. "
Writing to a largely employer based audience, Jacobsmeyer claims that
" We can anticipate the Court’s mischaracterization of the impact of Labor Code § 4661.5 may be used by applicant attorneys to try and cause some mischief in the future. However the language is dicta at best and certainly is not part of the Courts holding in this case. The Court is not interpreting Labor Code § 4653, just making an observation about it."
In any event, it's quite fascinating to see the California Supreme Court make an adjustment in Baker V. WCAB and then in doing so, making another error that will likely trigger a "Baker Three".
Might the Court get cold feet for comp?