Oakland Workers Comp Blog by Attorney Julius Young.2010-09-10T12:39:53Zjulius@workerscompzone.comCopyright 2010, julius@workerscompzone.comSPHPBLOGTHE SUPREMES TAKE ON FURLOUGHS According to reports from observers who were there, it seems likely that the court will rule that the furloughs are legal.
The debate centered on issues as to whether the governor has implied furlough power and whether legislative budget actions bestowed the furlough powers.
Governor Schwarzenegger has repeatedly refused to exempt user-funded agencies such as the WCAB from the furloughs.
Whether our next Governor will continue furloughs and, if so, exempt user-funded agencies is an unknown.
Stay tuned.
Julius Young www.boxerlaw.com]]>http://www.workerscompzone.com/index.php?entry=entry100909-0846052010-09-09T00:00:00Z2010-09-09T00:00:00ZEAMS FOR ALL That's the word in a piece written by Greg Griggs, an editor at Workcompcentral.com.
Griggs quotes Star from a visit Star made to the Oxnard WCAB.
Currently there are under 500 e-filers. Most attorneys still participate in the computerized WCAB system, EAMS, by filing optical character recognition documents which must then be scanned by WCAB staff.
Any mandated transition would be a ways off, however. Regulations must be drafted. There would be a comment period, and possible re-drafting.
And all of this will be in the hands of a new administration. While it's possible that there will be some hold-overs, it's safe to guess that there will be a new court administrator and new faces at the DWC, whether Brown or Whitman prevail.
Like many in the comp community, I've always thought that EAMS had many problems. The rollout of EAMS was rocky. Some of the EAMS spokespeople were arrogant and in truth stirred up resistance to the project by refusal to acknowledge concerns of the community.
Some problems persist. Forms are still too way long. Sorting through documents and handling online documents and exhibits at a trial is cumbersome. Bulk lien filing has been an issue.
But Boxer & Gerson has participated as e-filers. There are advantages, including being able to check liens easily, being able to select court appearance dates, being able to set up walk-thrus quickly, and being able to get application numbers quickly.
Firms that specialize in comp who aren't e-filers may end up finding it to their liking, somewhat to their surprise.
But care needs to be taken with the transition. Some small firms are not tech savvy at all, and the process will be hard for those dabbling in comp.
Stay tuned.
Julius Young www.boxerlaw.com]]>http://www.workerscompzone.com/index.php?entry=entry100908-1241162010-09-08T00:00:00Z2010-09-08T00:00:00ZDOES CHINA OFFER STATE A MODEL FOR JOBS? That's the title to a piece by Dan Morain in the Sacramento Bee. Morain reflects on an interchange between Senator Barbara Boxer and challenger Carly Fiorina in last week's Moraga senatorial debate.
In a world where, as Fiorina noted, jobs can be moved anywhere, should Americans just suck it up and adopt labor standards closer to Chinese standards?
If American workers live under the fear of outsourcing or corporate "rightsizing" by CEOs making huge pay packages, should American workers just get over it? Is the problem with our system, or theirs?
Granted, the Chinese are very industrious and hard working. China's educational system has made great strides along with its infrastructure system. Centralized decisionmaking facilitates decisive planning for transit and development projects.
But is the problem really with American laws giving too many rights to workers, and with government demanding too much from industry?
Fiorina seems to favor larding businesses with tax relief packages. It's not clear whether she would favor rolling back OSHA safety regulations, wage and hour regulations, most environmental protections, or other worker rights laws.
Is this really the problem?
Should American politicians be delivering a harsh message to American workers this Labor Day? A message that you're not so special, so suck it up, expect less, get real.....The world is gaining on you.
Julius Young www.boxerlaw.com]]>http://www.workerscompzone.com/index.php?entry=entry100905-1019532010-09-05T00:00:00Z2010-09-05T00:00:00ZSB 1254 Sponsored by Mark Leno of San Francisco, SB 1254 is a bill worthy of the Governor's signature.
Anyone paying the least attention to workers' compensation over the last few years has to have noted the recurring problem of uninsured employers. Failure to secure worker's comp coverage has been endemic in certain industries such as car washes and restaurants.
The construction industry is another area where there are major problems with uninsured employers or misclassified employees. Many of these employers are also unlicensed. And such employers frequently violate other labor standards laws.
A study prepared by Frank Neuhauser and Colleen Donovan at UC Berkeley for the California Commission on Health Safety and Workers' Compensation has noted that employer fraud imposes huge costs on the system and honest employers: http://www.workerscompzone.com/pdfs/stupid.pdf
SB 1254 would put more teeth in anti-fraud efforts. It would provide that a stop-work order be issued to unlicensed contractors who have failed to secure comp coverage. Increased inspectors would be used to do Contractors State License Board investigations. It's a step in the right direction.
The measure passed in the California Senate with no opposition. Only one vote against the bill was noted in the California Assembly, Assemblyman Diane Harkey of Dana Point, a proponent of "rightsizing the government".
]]>http://www.workerscompzone.com/index.php?entry=entry100902-1315282010-09-02T00:00:00Z2010-09-02T00:00:00ZPROTECT CALIFORNIA JOBS Sounds logical.
But that may not be the case.
Last year Governor Schwarzenegger vetoed legislation to require that UR reviews be done by California-licensed physicians.
This seems like a no-brainer bill. After all, why should California export good-paying jobs to other states?
What's the benefit to California in having Texas or Florida doctors doing utilization reviews? Whatta they got that we don't got?
Does the Governor really think that California doctors will be too generous with approvals of treatments requested by their brethren? If that's the argument. where's the evidence for that?
The Governor will get a second chance on this issue. A bill to require in-state reviews is headed to the Governor's desk. It's AB 933, carried by Assemblyman Paul Fong of Cupertino.
If my iPad and iPhone can be designed in Fong's district, right here in Cali, then surely we can give the business to UR reviewers right down the road.
Let's hope the Guv gets a change of heart on this one.
Julius Young www.boxerlaw.com]]>http://www.workerscompzone.com/index.php?entry=entry100829-2217522010-08-30T00:00:00Z2010-08-30T00:00:00ZINGMARLAND Years ago when I was in theological school (getting a master's as a Rockefeller Brothers fellow), I did a thesis on the philosophical underpinnings of Ingmar Bergman's films. For those of you who have never seen The Seventh Seal, Persona, Hour of the Wolf, Shame, Scenes from a Marriage or any of the other Bergman masterpieces, let's just say they are not your basic Adam Sandler fare.
Bergman has now passed away. We live in a world that is less Chekov, Pirandello, Ibsen or Strindberg and more Homer and Marge and Bart.
Ugly Betty would have passed on playing chess with Death.
This was my first journey to Bergman's home, Sweden. And my first time in Denmark.
Impressions?
Listening to wannabes covering Dr. Dre and Snoop Dogg in a central Stockholm festival, I could have sworn I was in L.A.
But the semblance ended there.
Clean and safe streets...polite, stylish, well groomed, well educated people....efficient public transit.....a mixture of beautifully preserved old buildings and recent innovative architectural designs... Sophisticated....technologically advanced...calm.
Stockholm and Sweden are both visually stunning. And the countryside in both countries is lush and appealing.
Aside from long, cold dark winters there's little to not like.
Heck, they even have the Icebars where George the Bartender could be serving cocktails in an ice glass sculpted out of a glacier.
But what's happening with workers' comp in Scandinavia and the Baltic states? Unfortunately there was not time to visit any hearing boards to see matters firsthand.
But for those of us in the workers' comp field I did find an interesting. comparative analysis of Scandinavian and Baltic workers' compensation systems.
What's so interesting is Pekka's comparative chart showing what is covered and what is not, whether there are private insurers or not, and how benefits are integrated with other available benefit systems.
Sweden and the Baltic states (Latvia, Lithuania & Estonia) currently do not have private insurers involved in workers' comp.
Pekka lists hot issues in the 3 Scandinavian countries that do have private insurers in the comp market: -Denmark's change of the definition of "accident" -the impact of lower premium volume on Finnish insurers and debates over changes in Finnish comp law -profitability challenges for Norwegian insurers and issues surrounding transition to centralized claims handling
In California we sometimes get obsessed with our own system, forgetting that other places have figured out other ways to compensate their workers.
]]>http://www.workerscompzone.com/index.php?entry=entry100827-2054022010-08-28T00:00:00Z2010-08-28T00:00:00ZA THREAT? Fox is publisher of "Fox and Hounds" and is the President of the Small Business Action Committee.
Fox wistfully notes that pro-business forces had enough signatures to pursue a ballot initiative in 2004 and had been advised by some legislators to file "because they believed our initiative reform was stronger than what was coming out of the legislature".
Whether intended as a threat or not, Fox closes his blog post with this: "With the threat of troubling workers' comp increases facing business again; we will see if that was the right move."
]]>http://www.workerscompzone.com/index.php?entry=entry100824-1501382010-08-24T00:00:00Z2010-08-24T00:00:00ZBLOWUP?the cycle that seems to prevail in California workers' comp.
After reforms, some system stakeholders nurse their wounds. Pressure builds until there's another set of players demanding reform.
Julius Young www.boxerlaw.com ]]>http://www.workerscompzone.com/index.php?entry=entry100824-0034332010-08-24T00:00:00Z2010-08-24T00:00:00ZGUZMAN While not final/final, its starting to look like the Almaraz/Guzman II decision of the WCAB will survive.
Workerscompzone is on vacation. But when I return to my office I'll be analyzing Guzman in a video point-counterpoint format I'll be launching soon with a leading defense attorney. More about that another time.
The Court of Appeals has yet to decide to hear the Almaraz II case, and in fact may never grant a writ to hear the case.
Unless a conflict develops between different California Court of Appeal districts, it's hard to imagine the California Supreme Court wading into this controversy. After all, the California courts have extended great deference to the WCAB.
So, it would appear that Guzman is here to stay.
This pretty much undercuts some of the self-serving experts who packaged themselves as keepers of the pure AMA Guides flame.
The decision by the 6th District makes it clear that doctors and judges are not bound to administer cookie cutter justice based on shibboleths of a narrow AMA Guides approach.
As the 6th District notes, "we take a broader view of both its text and the statutory mandate". The 6th District noted: "We cannot expand the statutory mandate by changing the word "incorporate" to "apply exclusively." Nor can we read into the statute a conclusive presumption that the descriptions, measurements and percentages set forth in each chapter are invariably accurate when applied to a particular case. By using the word "incorporation," the Legislature recognized that not every injury can be accurately described by the classifications designated for the particular body part involved. Had the Legislature wished to require every complex situation be forced into preset management criteria, it would have used different terminology to compel strict adherence to those criteria for every condition."
Also worth noting in the opinion: -the 6th district notes that "The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides. pp.4,5.)" -the Court also notes that "The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms."
This leads the 6th District to note the importance of clinical judgement and the concepts of Chapters 1 and 2 of the Guides.
At the end of the day under Guzman, the "how and why" expressed by the physician will be critical. The 6th District notes that the physician's medical opinion must constitute substantial evidence.
Defendants will argue that Guzman applies only to extraordinary and complex cases. The decision notes that "Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected."
So we can expect defendants to focus on challenging doctors as to the how any why they are using other descriptors under the Guides. For example, the Court noted "if Guzman's carpal tunnel syndrome is adequately addressed by the pertinent sections of Chapter 16, an impairment rating that deviates from those provisions will properly be rejected by the WCJ".
On the other hand, noting in this decision prevents a physician from using other portions of the Guides where the Guides would otherwise not describe the condition qdequately. That's where we'll see doctors using their clinical judgement.
In the coming year or two we'll see the WCAB setting forth parameters in some cases as to how far doctors can go in using other charts, tables or methods. And we'll see in some cases how much how and why analysis the examining physician must provide before successfully departing from the "straight AMA" analysis.
But for the moment, chalk this up as a big win for disabled workers.
Julius Young www.boxerlaw.com]]>http://www.workerscompzone.com/index.php?entry=entry100820-1214242010-08-20T00:00:00Z2010-08-20T00:00:00ZSEPTEMBER 28 That's the day now scheduled for public hearings on the WCIRB's recommendation for a 30% workers' comp premium rate increase (actually the recommendation is for a 29.6% increase).
The hearing will be held at the CDI conference room at 45 Fremont Street in San Francisco, 22nd Floor.
The WCIRB press release noted that "If the full 29.6% increase is approved by the Insurance Commissioner, the January 1, 2011 pure premium rates will still be, on average, 53% lower than the approved pure premium rates in effect July 1, 2003."