Various workers’ comp bills have ben introduced in the legislature. I’ll be covering them soon, and following them as the legislative season progresses.

But today is the time to shine a spotlight on a deserving bill that might just help unemployed injured workers and victims of the economic downturn alike.

It’s AB 1450.

Sponsored by Assemblyman Michaell Allen (D-Santa Rosa), the bill would prohibit discrimination against the unemployed.

The bill seeks to address the sort of discrimination which arises when employers discourage the unemployed from applying for jobs. There have been a number of reports of hiring companies requiring that applicants currently have a job.

These sorts of policies obviously add to the burden of seeking employment and disadvantage those who stopped working because of an injury, a pregnancy, a family emergency, or who were laid off due to the down economy.

Employment status would be added to other criteria (such as race, gender, religion etc) which are protected criteria in hiring decisions.

A number of other states have adopted such laws, including New Jersey.

Business groups will likely oppose the legislation, and it’s not currently clear whether the Brown Administration will support the concept.

Writing in the Riverside Press-Enterprise, staff writer Jack Katzanek notes that:
“A paper published in July 2011 by the National Employment Law Project, an advocacy group that supports employment rights for lower-wage workers, researched four of the most common-used job-search web sites and found 150 listings that expressly ruled out applicants based on their current employment status. Most used phrases such as “must be currently employed.” Some said they or the companies they were headhunting for would accept someone who was recently employed.Most of the listings NELP cited were employment agencies but also included companies such as Allstate Insurance, investment and asset management company Greenstreet Real Estate Partners and Johns Hopkins University. CareerBuilder.com and Indeed.com were the locations of three-quarters of these listings, NELP found.”

Here is the legislative counsel’s digest of the current version of the bill (note that amendments are likely):
“AB 1450, as amended, Allen. Employment: discrimination: status as unemployed.
Existing law contains provisions that define unlawful discrimination and employment practices by employers and employment agencies.
This bill would make it unlawful, unless based on a bona fide occupational qualification or any other provision of law, for an employer to knowingly or intentionally refuse to consider for employment or refuse to offer employment to an individual because of the individual’s status as unemployed, publish, an employment agency, or a person who operates an Internet Web site for posting jobs in this state to take specified employment actions relating to employment status, as defined, including, among other things, refusing to hire a person because of that person’s employment status and publishing an advertisement orannouncement for any job that includes provisions pertaining to an individual’s current employment or employment status as unemployed, as specified, or direct or request that an employment agency take an individual’s status as unemployed into account in screening or referring applicants for employment, as specified.
The bill would also make it unlawful, unless based on a bona fide occupational qualification or any other provision of law, for an employment agency to knowingly or intentionally refuse to consider or refer an individual for employment because of the individual’s status as unemployed, limit, segregate, or classify individuals in any manner that may limit their access to information about jobs or referral for consideration of jobs because of their status as unemployed, or publish an advertisement or announcement, as described above with respect to employers.
This bill would subject an employer or, an employment agency, or a person who operates an Internet Web Site for posting jobs in this state who violates the above provisions to civil penalties that increase as the number of violations increase. The bill would state that it shall not be construed to create a private cause of action, as specified.
The State Contract Act governs contracting between state agencies and private contractors, and sets forth requirements for the procurement of materials, supplies, equipment, and services by state agencies.
This bill would provide that failure to comply with the requirements of the bill would constitute a breach of the contract and may be grounds for canceling, terminating, or suspending the contract, as specified, and debarring the contractor from eligibility for an award of future state agency contracts for a period not to exceed 3 years, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.”

Unless there is a change, there will be a hearing on the bill March 28 at the Assembly Labor and Employment Committee at the Capitol.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

This was a week where I personally learned one of the obstacles injured workers face.

I was lucky. The malady was not industrial. Between my persuasive powers and the fact I knew the doctor, a thirty day wait for an appointment was reduced to one-half day.

There was no UR hoop to navigate. My bleeding and swollen finger would be addressed.

What did I learn in the process that relates to workers’ comp?

That even a minor injury can sometimes knock a worker-off task.

In this instance it was minor knuckle surgery. Surgery that was in and out at an ambulatory surgery center.

Surgery at 8 am, under a light general anesthetic, and back to work by lunchtime. No post surgical pain meds given, and none requested.

But it was interesting to experience the effect of having even one digit immobilized and anesthetized.

For several days it’s been hard to type. Keyboard usage is fundamental to modern lawyering. Answering e mails. Sending instant messaging to staff.
Holding a briefcase and an umbrella.

So it’s been hunt and peck at a keyboard. Productivity slowed.

I also got a glimpse of the disruptive effect the medical system can have on an individual. Schedules are disrupted. Other tasks-or pleasures-get canceled or delayed.

Suddenly there are consultations. Pre-op appointments. Trips to the lab for pre-op blood panels. Trips to get an EKG before the doctor will do a simple surgery under anesthesia. Surgery itself.

And the family is affected. The spouse misses work to provide a ride home.

And then post op appointments.

For a number of workers this becomes the steady routine, sometimes for years on end.

Frankly, it’s exhausting. It’s easy to see how ambition gets sapped, and attitudes can deteriorate. And it’s no surprise that employers would sometimes get cranky if a worker’s productivity dropped off as a result.

Then there’s the humbling aspect of it all.

You may feel healthy overall striding into the surgery center in blue jeans and boots.

But suddenly you’re wearing a gown that barely ties in the back. You’re wearing little paper booties with faint rubber no-slip strips. And you’re told to put on a blue hair net. An iv is in your arm.

Told to avoid drinking any liquids, you are in caffeine withdrawal as you await the event.

No wonder you feel vulnerable.

My point is that even where one is grateful for having excellent doctors and the most efficient care, entanglement with the medical system is a psychic drain.

Not enough attention is paid to this in our comp system. With lives disrupted, work habits and routines get disrupted. It can all run downhill.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

One of the emerging successes of the Division of Workers’ Compensation under Jerry Brown is that the Medical Unit appears to be whittling down the backlog of requests for QME panels for both represented and unrepresented workers.

DWC Administrative Director was recently quoted in an article by Greg Jones of workcompcentral.com on the topic of medical panels. According to Jones, “When she started as administrative director in July, the unit was almost 10 months behind in issuing panels. Moran said Monday that the unit is now working on requests dating back to December 27, 2011.” This progress was also hailed by Jim Fisher of the DWC Medical Unit in recent remarks at the Los Angeles and Oakland DWC conference.

But will this progress be crushed by a potential tsunami that lurks on the horizon?

Huh, you say. What?

The tsunami could be triggered if the WCAB clarifies the law on whether represented workers must appeal utilization review treatment denials by going through the QME process.

Although some of my readers may have strong opinions about what procedures the law does or does not require, the fact is that there many judges and attorneys who believe that the QME process is permitted but not mandatory where a represented worker seeks to appeal a UR non-certification of a treatment request.

Since the 2003/2004 reforms, many a treatment dispute has been resolved by settlement or trial where the attorney challenged the utilization review physician denial by filing a declaration of readiness, relying on a report by the treating physician.

In some of those instances there were issues regarding whether the defendant had met statutory requirements for a valid utilization review:
-was the UR physician competent to evaluate the treatment request
(see Labor Code 4610(e))?
-was the treatment request within the scope of the physician’s practice (see labor Code 4610(e)?
-was the UR review timely (see 4610(g)(1))?
-would delay be detrimental to the employee’s health, triggering stricter timeframes (see 4610(g)(2)?

TO BE CONTINUED IN PART 2………

Julius Young
www.workerscompzone.com
www.boxerlaw.com

One of California’s largest unions, SEIU-United Healthcare Workers West, is circulating two healthcare initiatives, both aimed at California hospitals.

One is called the Fair Healthcare Pricing Act of 2012, the other the Charity Care Act of 2012.

The latter, according to the SEIU webiste would:
“Sets the minimum level of charity care at 5 percent of patient revenue that nonprofit hospitals must spend on healthcare for the needy in exchange for not paying federal, state and local taxes. Nonprofit hospitals (about three-quarters of California hospitals) are charitable organizations and in exchange for their tax exempt status they have to provide charity care, but there is no minimum and they do not provide a sufficient amount. This would infuse millions of dollars for healthcare and preventive services into low-income communities and is more affordable than costly emergency room care.”

According to the SEIU website, the Fair Healthcare Pricing Act of 2012:
“Prohibits hospitals from charging more than 25 percent above the actual cost of providing patient care. On average, California hospitals charge 450 percent, and as much as 1,000 percent, more than the actual cost of providing care when they treat patients in their facilities. Insurance companies and the uninsured are often left to deal with vastly inflated bills that drive up the cost of healthcare for everyone.”

If it gathers sufficient signatures and if it prevailed at the ballot box, what effect would the fair Healthcare Pricing Act of 2012 have on workers’ comp medical treatment costs? Would hospital costs in workers comp decrease significantly?

Any readers with special expertise in hospital costs/hospital pricing are invited to e-mail the blog at jyoung@boxerlaw.com with their observations.

Here is a link to the text of the pricing initiative:
http://yesforahealthycalifornia.org/wp- … ricing.pdf

The initiative is already catching some flak. Kaiser and Dignity Healthcare (formerly Catholic Healthcare West) would be exempted, as would be public hospitals. Here is a a piece from the Los Angeles Times by Michael J. Mishak which analyzes some of the controversy over why certain hospital chains are exempted:
http://www.latimes.com/news/local/la-me … rint.story

Julius Young
www.workerscompzone.com
www.boxerlaw.com

California’s unemployment insurance fund continues to sink in a sea of red ink. The fund has been insolvent since 2009, with a current UI fund deficit of over $10 billion.

Projections are that the deficit could grow to $13 billion by 2014.

Already California owes the federal government $10 billion on a loan that has kept the fund solvent. In September 2012 California will owe the federal government a $417 million interest payment. This is real money for a state that is struggling to pay its bills.

It’s an issue I’ve written about before, but which continues to get less scrutiny than public pension problems, education funding, water policy, or a whole host of other public policy issues that plague California.

And while not a workers’ comp issue, it is an issue that may affect lots of injured workers who become unemployed after work injuries. Moreover, solutions to the problem could entail increased costs for employers which add to the overall cost of doing business in California. That’s the constant backdrop for any discussions of workers’ comp reform.

The Legislative Analyst Office has issued a new report on the UI fund.
Key talking points are these:
-Interest payments California owes on the federal loan are a significant
liability for the General Fund. The LAO estimates that over the next decade interest payments on the federal loan could exceed $3 billion.
-UI fund borrowing results in increased federal taxes for California employers as a result of the way credits are figured under FUTA the Federal Unemployment Tax Act).
-there is a structural mismatch between the California UI program’s revenues and its benefits which has contributed to the decline in the UI program’s solvency
-potential federal reforms could help improve solvency, but are stalled politically at the moment in Washington

The LAO report notes that Governor Brown’s proposed 2012-13 budget includes three UI-related proposals which can be summarized thusly:
1. Cover the state interest costs on the federal loan by a loan from the state’s disability insurance fund
2.Create a new revenue source for paying the interest payments California must pay to the feds and to repay monies borrowed from the disability insurance fund for 2011-2012. The source would be a new surcharge on employers. The surcharge would not be to pay down the federal loan principal, but rather to fund the interest costs on the loan.
3.Increase the minimum monetary eligibility requirement. Essentially this would require unemployed workers to have made more money in their base period to qualify for benefits.

The LAO analysis recommends that Governor Brown’s proposals be part of a comprehensive solution. Here is their recommendation:
“Consistent with our previous reports, California’s Other Budget Deficit: The Unemployment Insurance Fund Insolvency and Managing California’s Insolvency: The Impact of Federal Proposals on Unemployment Insurance, we continue to recommend that, in the absence of federal UI reforms, the Legislature adopt a comprehensive plan to ensure the long-term solvency of the UI fund. We suggest that such a plan be balanced, including both actions on the revenue side (increased employer taxes) and the cost side (decreased UI benefits). We have provided examples of balanced plans in the reports mentioned above. As has been discussed previously, the Governor’s proposals fall short of being a comprehensive plan to address the long-term solvency of the UI fund. However, we find that the Governor’s proposals merit consideration if included in a comprehensive long-term solvency plan. If a future long-term solvency plan included increased employer taxes, dedicating a portion of these increased revenues to making interest payments on the state’s federal loan—in a manner similar to that proposed by the Governor—would avoid significant General Fund costs in future years. Also, we concur with the Governor’s assessment that monetary eligibility thresholds should be updated to reflect changes in wage levels.”

The LAO report concludes :
“We recognize that, in light of uncertainty regarding federal UI reforms and the recovery of California’s labor market, the Legislature may wish to take a wait-and-see approach during 2012 and delay enactment of a long-term solvency plan until next year. Enactment of a long-term plan will likely necessitate significant legislative deliberation and compromise among the various stakeholders of the UI system. For this reason, if the Legislature elects to delay addressing UI fund insolvency, we think that is would be premature to enact the Governor’s proposed employer surcharge and monetary eligibility changes. Under this scenario, we would recommend that the Legislature postpone considering the Governor’s proposals until they can be considered as part of a long-term solvency plan. In the interim, continuing the current-year strategy of borrowing from the DI fund to cover the state’s federal interest payment—creating short-term General Fund savings—is warranted by the state’s fiscal condition.”

So, like workers’ comp reform, reform of the UI system awaits a comprehensive approach. Like workers’ comp, it’s an issue with wide implications for powerful California business and labor interests, so the stakes are high.

Stay tuned.

In a coming post I will explore the issue of whether workers appealing treatment denials are required to go through the QME process or whether that is elective.

Here is a link to the LAO report:
http://www.lao.ca.gov/laoapp/budgetlist … KeyCol=555

Julius Young
www.workerscompzone.com
www.boxerlaw.com