Lacking lawyers, justice is denied.

That's the title of a major piece by Daniel Costello in yesterday's Los Angeles Times.

Costello examines the effects of the 1975 cap on California medical malpractice awards known as MICRA. MICRA (the Medical Injury Compensation Reform Act) puts a $250,000 limit on awards for non-economic damages (such as pain and suffering, loss of consortium, and so forth).

The $250,000 cap hasn't been adjusted in over 32 years. That's 32 years unadjusted for inflation.

Meanwhile, insurer malpractice insurers are reaping large profits. Costello notes that since 1991 the national average payout of malpractice insurers is 63 cents on the dollar, but in California, it's 39 cents on the dollar.

Voila! Medical malpractice insurers are making profits almost as great as the workers' comp carriers.

Medical malpractice case filings are down significantly. In Los Angeles County, they are down 48% since 2001- to their lowest level per capita in four decades.

An injured worker who is harmed by the medical negligence of a doctor or hospital will often find it hard to locate an attorney to sue the medical provider. The civil jury trial lawyers at Boxer & Gerson do take these kinds of cases, but the cost of handling these cases (expert witnesses, depositions and trial) are often prohibitive unless there are substantial economic damages, such as large future earnings losses.

Among the groups that have a particularly hard time finding attorneys are low wage earners, minorities, and the families of infants and the elderly who die at the hands of medical providers. Rural Californians-who often have limited incomes and who do not have access to top quality care in the first place-are also in that group.

It's unlikely that the Schwarzenegger administration will look favorably on any adjustment to MICRA.

But it will be interesting to see how the presumptive Republican gubernatorial candidate Steve Poizner develops his position on MICRA. At some point, it's hard to keep justifying a three decades-old cap while insurers pocket big profits. Something has to give.

You can find the LA Times article by clicking here:
http://www.latimes.com/business/la-fi-m ... ome-center

Stay tuned. Over the next week, I'll be doing a recap of the key 2007 comp developments and a piece on projections for 2008.

Julius Young
www.boxerlaw.com
*

Wedding crashing.

You've undoubtedly seen The Wedding Crashers. Owen Wilson and Vince Vaughn pay charming rogues who crash weddings hoping to meet women.

Following their own crashing code, they insinuate themselves into a Jewish wedding, telling gullible young women of their exploits with the French Foreign Legion and climbs on Mt. Everest.

Crashing a high-society wedding, the Schopenhauer-quoting Vaughn seduces the sister of the bride. Meanwhile, Wilson chases the apple of the family patriarch's eye. And all the while, the two are fodder for fantasies of the gay son and the exhibitionist mother.

Even lower on the moral totem pole is the Will Farrell funeral crasher. Farrell's character crashes funerals, hoping to meet beautiful widows in their time of need.

Think it doesn't happen in real life? Think again after looking at Klare Richardson-Tunnell's situation.

Richardson-Tunnell, a school teacher for the Lucia Mar Unified School District in San Luis Obispo County, had a back injury at work. As a result, she had a disc replacement surgery in June 2003. Some four months later-in October 2003-Richardson-Tunnell got married while she was on disability leave.

The comp claim was handled by SIPE (the School Insurance Program for Employees), an adjusting agency handling claims for the district. SIPE commissioned Anthony Esparza and Eye-Con Investigations to investigate Richardson-Tunnell.

Esparza crashed the wedding, apparently attending the wedding and the reception at the Victorian Pitkin-Conrow house in Arrroyo Grande which Richardson-Tunnell had rented for her exclusive use.

Esparza may or may not have flirted his way through the wedding and reception, but even if he didn't leave with any phone numbers he did leave with some video.

The next day, he followed up on the honeymoon, using a telephoto lens to shoot pictures of the couple sunbathing on the balcony of their rented hotel lodging.

Richardson-Tunnell sued for damages under various theories-invasion of a constitutional right to privacy, violation of Civil Code 1708.8 (the anti-paparazzi statute), violation of privacy-intrusion, and negligence.

The California 2nd District Court of Appeal (Division Six) ruled that as public entities, SIPE and the school district are immune from a lawsuit for damages under California's Government Code 821.6.

Interestingly, the court notes that SIPE and the school district "do not dispute that Richardson-Tunnell had a right to privacy at her wedding ceremony, reception and honeymoon." But the court was unwilling to say that Civil Code 1708.8 (the anti-paparazzi statute) trumps governmental immunity from damages under Government Code 821.6.

The case-Klare Richardson-Tunnell vs. School Insurance Program for Employees-doesn't speak to the liability of Esparza and Eye-Con. The case was an appeal from the trial court's dismissal of the district and SIPE from the lawsuit. Presumably, the case will proceed to trial against Esparza and Eye-Con. It's not clear what sort of defenses Eye-Con might raise.

Comp wedding crashers beware. If the defendant was a big or small non-governmental employer, there would have been no immunity.

And don't even think about crashing that funeral either.

Stay tuned. I'll be doing some year-end recaps over the next week.

Julius Young
www.boxerlaw.com
*

The recent coverage about Vaira, the AARP and ACLU's challenge to application of California's workers' compensation apportionment, failed to highlight that a second case was coming on the heels of Vaira.

The case is Fitzpatrick v. WCAB. Arguments were held last Monday in Sacramento at the 3rd District Court of Appeal.

The claimant in Fitzpatrick is 64 year old schoolteacher Dianne Fitzpatrick. Fitzpatrick was injured when she was pulled to the ground by an unruly pupil in a schoolyard incident.

Clearly the "cause" of the injury was being pulled to the ground. And if she had no disability before being pulled to the ground, in what sense is her disability "caused" by a non-symptomatic underlying condition?

But at the trial level, the judge reduced her permanent disability award by over half by apportioning to osteopenia.

Osteopenia is a bone mineral disorder which is often a precursor to osteoporosis. The disorder is usually found in post-menopausal women and thus is generally related to the aging process. It can also be found in some young high-performance female athletes.

Vaira raised as many questions as it answered. The Vaira court rejected apportionment to age per se but appeared to leave the door open to apportionment to age-caused problems to some extent. In Vaira, the 3rd District remanded the case to the WCAB for additional proceedings and ordered its decision to be "unpublished" and therefore not citable in other legal proceedings.

It's possible that Fitzpatrick-handled by Sacramento applicants' attorney Melissa Brown-could be the more important case of the two.

I'll be watching for the decision, which will probably come in early January 2008.

I hope you'll check back over the holidays. I'll be doing a piece called "The Wedding Crashers."

And I'll be doing a recap of the top events in California workers' comp in 2008 and a separate piece on the top cases in 2008.

Stay tuned.

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

Thank goodness for "user funding." By and large, the workers' comp system pays its own costs, so the system is less vulnerable to cuts in times of a $15 billion California state budget shortfall.

A shortfall which could require tax hikes, of course. Among revenue-increasing ideas being floated in Sacramento is taxing services-lawyers, accountants, architects, doctors and so forth. Perhaps even insurance broker services?

Meanwhile, Don Perata holds in his hands the fate of AB1X, the recent Nunez-Schwarzenegger health care reform bill.

But Perata is looking to the budget nun for guidance.

Budget nun? Who is that?

Read here to find out:
http://www.latimes.com/news/local/la-me ... news-local

Stay tuned.

Julius Young
http://www.boxerlaw.com/practices/injury.html
*

One of my heroes died recently. Evel Knievel. Knievel staged death-defying jumps over impossibly long barricades and into huge river canyons. Part athlete, part showman, part insane man, Knievel was the Harry Houdini I dreamed about as a little kid.

As readers of the column know, my mind works in strange ways.

Today, as I sat pondering Knievel, I came upon the California Workers' Compensation Institute (CWCI) of California workers' compensation medical treatment over the past few years. The study was undertaken by the Oakland-based CWCI at the request of the Oakland-based WCIRB (Workers Compensation Insurance Rating Bureau). Apologies to Gertrude Stein, but there IS a there there in Oakland.

The study shows a steep falloff on some types of workers' comp treatment over the past several years-particularly for chiropractic treatment. The falloff has been steeper than many of Knievel's jumps. The percentage of claims involving chiropractic fell by 68.6% between 2002 and 2006.

There were significant declines in utilization of physical therapy and radiology procedures.

Rather than summarize the study, here's a link so you can see it yourself:
http://www.cwci.org/pdfs/Research_Update1207.pdf

ACOEM and utilization review have shrunk treatment utilization, wringing billions out of the system. But it's also left many workers and physicians frustrated, with a resulting exodus of many doctors from the system.

To see how treatment denials have affected some workers, I'd recommend a visit to this site:
www.denialofcare.org

Stay tuned.

Julius Young
www.boxerlaw.com
*