One of the more embarrassing recent episodes in California workers' comp has come to a close.

Dollar Tree Stores has agreed to pay the death claim in the case of Taneka Talley. Talley was murdered in 2006 while working as a salesclerk in Fairfield. A customer who Talley did not know walked into the store and stabbed her.

We may never know all of the true circumstances in the mind of the attacker that fateful day. But we do know that there was no personal connection between Ms. Talley and the assailant other than the fact that the workplace provided the connection which led to the attack.

A decision to fight the claim by Dollar Tree (which may or may not have been recommended by its attorneys, Gray and Prouty) garnered national outrage. The case became a textbook example of poor public relations planning.

Talley's family was capably represented by my colleague Moira Stagliano at Boxer & Gerson in Oakland. Boxer & Gerson is proud that we were able to help her family achieve some sense of justice after suffering the loss of Ms. Talley in the senseless murder.

Here's the article of the settlement that appeared in the San Francisco Chronicle:
http://www.sfgate.com/cgi-bin/article.c ... =printable

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right column under "Most Recent Entries")

What's ahead in the comp world for 2009 and beyond?

It's time for soothsayers among us to crawl out of the post-holiday haze. Rev up your futurescope and take the quiz:

1. Regarding the vacant WCAB commissioner spot, in 2009 Gov. Schwarzenegger will a) continue to leave it unfilled, helping the state budget crunch in the process; b) appoint someone from outside the comp world as a plum post as part of a legislative budget deal; c) appoint a workers' comp insider from the "comp community"; d) appoint a DWC figure to the board; e) none of the above

2. Looking ahead to 2010, applicant attorneys will a) be very divided, with most of the current crop of Democratic candidates finding a share of applicant attorney support; b) unite early behind AG Jerry Brown as the best hope for workers; c) largely hold back from supporting any candidate in hopes that Senator Feinstein will find the Governor's race more interesting than being Senate Intelligence Committee Chair; d) flirt with a Steve Westly candidacy in hopes that Westly can match up well against Republican Silicon Valley CEOs seeking the governorship: e) sit on their hands

3. The issue involving Benson vs, Permanente Medical Group and the apparent demise of the Wilkinson case allowing some successive injuries to be rated as one will be a) resolved quickly and definitively by the 1st District Court of Appeal; b) be unresolved as of 1.1.10 as conflicting decisions are rendered in 09 by different District Courts of Appeal; c) delayed as the Court of Appeal remands the case to the WCAB for more development of the record: d) resolved by the California Supreme Court in 09

4. A revision of the 2005 permanent disability rating schedule will a) be
adopted mid-09, similar to what was proposed in 2008; b) shelved, with
the Schwarzenegger administration claiming that the state's recesssion is too severe to risk any benefit increase; c) adopted at the end of 2009 to go into effect for injuries after 2010; d) dropped in favor of a legislative compromise allowing for a small increase in permanent disability rates; e) still under study at the end of 09

5. 2009 will see California comp insurers a) continuing to enjoy healthy profits; b) in some instances having trouble because of financial problems at parent companies continuing from 08; c) quietly nodding in favor of a benefit increase as they find premium volume continue to decrease; d) attempting to control overhead/loss adjustment expenses as a percentage of premium by laying off staff;

6. In 2009, the following will occur: a) significant shrinkage of the QME pool as old timers say sayonara; b) consolidation and shrinkage of the applicant bar as some practitioners exhaust their supply of pre-899 cases; c) a Federal economic stimulus package creates a boomlet of late 09 construction site cases; d) major changes in the comp defense bar due to decreased claim volume; e) economic shift causes a dramatic loss of power for unions in California, weakening worker advocacy

7. By late 2009, EAMS will : a) be working more smoothly, in part due to better training by the DWC; b) be limping along, with some boards relying on local rules as "workarounds" are developed to avoid some of the time consuming aspects of EAMS procedures and forms; c) be in a state of chaos, as unscannable forms and tasks mount up in EAMS limbo; d) become a subject of legislative hearings

8. By mid 09 the DWC and WCAB district offices will a) breathing a sigh of relief that a legislative budget solution was reached that prevented furloughs and layoffs: b) celebrating that layoffs and furloughs at SCIF were avoided at the DWC and WCAB due to "user funding"; c) operating with terrible morale, as furloughs and budget cuts amounted to wage cuts; d) operating pretty much as always

9. Big stories in 2009 will be a) financial crunch at the Self Insurers Fund due to a spate of corporate bankruptcies; b) the effect on the comp system as the safety net of public health services, unemployment benefits and SDI comes under pressure due to the economy and state budget; c) the California Supreme Court decision in the Smith case on attorney fees for handling treatment denial issues; d) a major Court of Appeals decision on apportionment issues; e) changing CMS rules regarding handling of Medicare SetAsides;

10 . In the legislature 2009 will be a) a repeat of 2008, where a number of bills sponsored by labor and the applicant bar were passed only to face a gubernatorial veto; b) a slow year, with very little legislation pushed by labor and the applicant bar during this legislative year; c) a productive year, where comp legislative deals are cut as part of legislative dealing on the budget and finance issues; d) a year when the Governor softens his opposition to making some changes in his SB 899 comp reform package; e) a year marked by a minor battle over renewal of the right to predesignate

11. On the issue of rebutting the PD schedule by testimony on diminished future earning capacity, by the end of 2009 a) the issue of how to rebut the schedule per the Costa case will clarified by WCAB en banc decision; b) under consideration at the Court of Appeal level; c) still unclear, as various WCAB cases deal with the issue on a piecemeal basis; d) moot, as a PD schedule fix makes such an approach unnecessary or impractical

12. As Republican candidates gear up for the 2010 Governor's race, we will see: a) Insurance Commissioner Poizner holding the line on insurer rate hike requests; b) Former EBay CEO Meg Whitman gathering considerable support from comp insurance interests; c) little if any focus on workers' comp issues; d) one of these candidates reaching out to labor in an effort to broaden their base

13. The incoming Obama administration will in 2009: a) other than in the economic policy area have no direct affect on the comp world ; b) will unveil a healthcare reform package with profound implications for comp; c) enact legislation making it easier for unions to organize and retain members; d) push legislation for Federal insurance company charters; e) achieve immigration reform which will have secondary effects on workers' comp

14. In 2009 there will be increasing interest in: a) regulation of expensive opioid treatments for chronic pain: b) integrating SDI and comp indemnity benefits; c) integrating workers comp and healthcare benefits; d) dropping EAMS altogether; e) integrating retraining voucher rules and fair employment laws;

15. By the 5th anniversary of the passage of SB 899, system observers will be: a) noting how little public attention is paid to comp anymore;
b) observing how comp is insinuating itself into the 2010 governor's race; c) marveling at the resilience of the California Applicant Attorneys
Association; d) noting that system administration and overhead costs are rising and benefits dropping, signaling ongoing problems with the system; e) starting to focus on new strategies to keep medical cost drivers under control; f) speculating on what further major changes will be made at SCIF to get it back on track

Serious entrants in the contest are welcome to e mail me their answers at
jyoung@boxerlaw.com. I'll tabulate answers at the end of 09. The winner gets a bottle of Dom Perignion for 1/1/10.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right hand corner under "most Recent Entries")

As always, the huge California workers' comp industry continues to be an area of great controversy. In 2008 the 2003 and 2004 reforms continued to settle in, but there were important new developments.

There are many possible items for a Top 10 list for California workers' comp in 2008. Here, in no particular order, are my picks:

1. GOVERNOR ISSUES VETO OF COMP BILLS

Intent on protecting the interests of business interests and loathe to make changes in his signature legislative success, Governor Schwarzenegger vetoed a group of bills passed by the Democratic-dominated legislature. Among the bills vetoed:
-a bill to reverse some of SB 899's sharp cuts in permanent partial disability benefits was vetoed for the third year in a row.
- a bill that would have explicitly prohibited discrimination in the application of apportionment statutes was nixed by a veto.
- Also vetoed was a bill that would have required California licensure of utilization review physicians
-and a bill that would have prevented abuses in workers' comp "cottage industries".

2. EAMS MAKES A ROCKY DEBUT

The California Division of Workers' Compensation unveiled the new computer management system, EAMS . Several years in the planning process by the DWC with lead contractor Deloitte and software contractor Curam, EAMS has been a subject of great anticipation and concern among comp world stakeholders.

One can only assume that the system will be upgraded over time, but as 2008 ends, attorneys, judges, and WCAB file clerks who are happy with the system are hard to find. Complaints run the gamut: forms that are too lengthy and confusing for practitioners and clients, extra work tasks occasioned by quirks in the system, poor training, lack of a coherent strategy for rolling out EAMS regulations and forms, lack of uniformity as to how to handle legacy cases, calendar delays and more.

EAMS appears to be a system best designed for data mining rather than practical interface with thousands of users.

The consensus seems to be that the system gets a "D". Unless substantial progress can be made, this assessment may be a stain on the record of Court Administrator Keven Star, currently off on extended military leave. It was under Star's watch when many of the key decisions on EAMS architecture were developed.

3. APPELLATE COURTS CONTINUE TO INTERPRET 2003/2004 REFORMS

Appellate court activity slowed somewhat in 2008, but important issues continued to be resolved. The California Supreme Court rendered its decision in SCIF v. WCAB (Sandhagen). The Sandhagen court noted that "An employer may not bypass the utilization review process and instead invoke section 4062's provisions to dispute an employee's treatment request".

In Fagundes-Guerrero the Court of Appeal rejected a challenge to the 24-visit chiropractic cap.

In Foster v. WCAB the 3rd District Court of Appeal ruled that where independent injuries result in concurrent periods of temporary disability, the 104 week two-year limitation runs concurrrently.

In Hertz v. WCAB (Aguilar) the 6th District Court of Appeal rejected a finding of permanent total disability under the LeBoeuf theory where the worker's non-feasibility was said to be due to language and literacy factors.

And at year end the comp community was awaiting a decision by the 1st District Court of Appeal in Benson v. Permanente Medical Group. Benson is an appeal of a WCAB en banc decision that rejected the decades-old Wilkinson doctrine. Unless Benson is overturned, separate injuries which become stationary at the same time will be usually be rated individually rather than rated as one. The 2nd District Court of Appeal is considering two cases (Vikitis and Forzetting) with Benson-type issues.

4. INSURERS CONTINUED TO REAP LARGE PROFITS IN THE CALIFORNIA WORKERS COMP MARKET BUT WARN REFORM SAVINGS DWINDLING
Overall premiums collected declined, but WCIRB statistics revealed that carriers continued to do extemely well in the California market. According to WCIRB statistics as of September 2008, loss ratios had deteriorated somewhat, but were projected at 52% of premium collected, a very favorable ratio by historic standards. Combined losses and overhead were 87% of premium. This was the 5th year in a row where insurer losses and expenses were significantly below premium collected.

Meanwhile, the WCIRB called for a 16% increase in comp premiums. This recommendation was rejected by Insurance Commissioner Poizner, who countered with a non-binding recommendation of a 5% increase. Most carriers came in with rates closer to Poizner's figure, casting further doubt on the WCIRB's forecasting.

In September 2008 the California Workers Compensation Institute noted concern about rising costs, particularly medical costs. Although the CWCI noted that usage of medical networks was increasing,certain medical costs, including opioid medical costs, had increased at high rates.

Raids by the Economic and Employment Enforement Coalition in 2008 continued to find many California employers without comp insurance, cornfirming a 2007 study for CHSWC that claimed that uninsured employers were defrauding the system of billions in premiums.

5. WORKERS AND THINK TANKS NOTED THE SYSTEM IS NOT WORKING

The current system came under criticism from workers and some system researchers.

In a November 2008 report prepared for CHSWC, UC Berkeley researcher Frank Neuhauser claimed that California state disability (SDI), funded by workers, is subsidizing California workers' comp. Neuhauser's research finds that up to 8.4% of work injuries and two-thirds of occupational diseases are being misclassified as non-industrial. Neuhauser also noted that SDI delivers benefits at a cost of about $.05 per dollar of SDI benefits whereas workers' comp costs $2.40 to deliver $1 in benefits.

Neuhauser called for integrating workers' comp and SDI. The publisher of workcompcentral.com, David DePaolo, issued an impassioned call for rethinking the system overall. But with the Governor and the legislature failing to advance healthcare reform in California, all eyes at the end of 2008 turned to see what the incoming Obama administration will propose on healthcare and how that might affect workers' comp.

Disabled workers received no relief from low permanent disability awards. Several post 2004 studies (including sudies by UC Davis and UC Berkeley researchers and the DWC's own figures) had shown that awards are reduced by as much as 50% or more from pre-2004 levels.
A legislative PD fix was vetoed by the Governor in September. The DWC unveiled a tentative proposal for a revision of the rating schedule which would result in a small PD increase, but at the end of 2008 that proposal appears to be in administrative limbo.

Meanwhile, WCIRB figures released in 2008 demonstrated that insurer overhead (ALE and ULAE) had risen and that when broker commissions and insurer overhead are added together, the cost of middlemen/overhead is as much as 60% of the benefits paid to or on behalf of disabled workers.

Concerns about system benefit adequacy went unaddressed. Worker advocates continued to note that benefits to workers seemd to be dwarfed by the interests of system stakeholders.

6. THE STATE COMPENSATION INSURANCE FUND RECEIVED NEW MANAGEMENT CONTINUED UNDER SCRUTINY

SCIF, California's largest comp insurer, has had its share of problems over the past few years. A scandal over arrangements with directors and certain "safety groups". A scathing audit and resulting legislative investigation. Removal of two executives in 2007 and resignation of 3 board members.

New management was at the helm in 2008, but problems persisted. New management sought to "rebrand" SCIF with a new image. Yet, SCIF was haunted by word that its loss-adjustment expense ratio had tripled to 38.4% over the past six years as its market share decreased from 50% to around 20% of the California market.

A Department of Insurance report noted that SCIF was bloated; SCIF had staffed up to process increased claim volume, but had not decreased staff as its market share declined. As the year ended it was not clear whether furloughs and layoffs proposed the the Governor would apply to SCIF (or the WCAB district offices for that matter) and whether this might provide impetus to SCIF to shed some of its overhead.

7. RECESSION RESULTS IN HIT TO SELF-INSURERS FUND
As both the national and California economies rapidly deteriorated in the fall of 2008, the parent of AIG teetered on the verge of bankruptcy before receiving government bailout rescue funding. Several other corporate parents of California comp insurers found themselves under pressure due to exposure to the subprime mortage fiasco.

A major corporate casualty of the economic downturn (and alleged chicanery by venture capitalists who took over the company) was major retailer Mervyn's. Since Mervyn's was self-insured, its comp obligations have been transferred to the California Self-Insurers' Security Fund.The projected exposure is said to be around $19 million.

In November 2008, fund manager Jeff Pettegrew was quoted as noting that the Self-Insurers Fund has adequate funding in place to absorb Mervyn's claims. According to an article in workcompcentral. com, Pettegrew noted that the Alternative Security Fund's 355 members have $5.5 billion in assets and "a recent actuarial report by Oliver Wyman concluded that the fund could withstand a major recession, pandemic or major earthquake".
With a number of companies having trouble in the current business climate, we may not have seen the end of this story.

8. ADMINISTRATIVE INACTION AND ACTION

As 2008 ends, it's apparent that the DWC has been in no hurry to finalize a number of long-promised regulatory changes. Among the regulations that have gone through multiple drafts and repeated public comment are:
-proposed new QME regulations
-proposed medical treatment utilization schedule (MTUS) regs, which would add chronic pain treatment guidelines consistent with the ODG guidelines and postsurgical treatment guidelines

Also of note on the regulatory front was the departure of DWC Medical Director Anne Searcy. Searcy headed to a position with Zenith Insurance.

9. THE SUN SETTING ON VOCATIONAL REHABILITATION
As the year ended, voc rehab for workers injured before 1/1/04 was considered by many to be sunseting 1/1/09 per Labor Code 139.5. If so, this marks a historic end to a benefit that was a pillar of the workers' comp benefits package for decades (note; workers injured after 1/1/04 may qualify for a lesser benefit, a schooling voucher).

In an e-mail, Neil Sullivan, deputy commissioner of the WCAB noted that after 1/1/09 the WCAB has jurisdiction to preside over "whether or not injured workers might be entitled to new or additional vocational services or benefits on or after 1/1/2009".The Rehab Unit as we have known it is gone as of 1/1/09.

What is not clear is whether the WCAB will have any statutory basis to award future voc rehab services or benefits after 1/1/09. You can expect litigation over this issue in 2009.

10. QME POOL SHRINKING

In June DWC Administrative Director Carrie Nevans noted in remarks at a CSIMS conference that 1,000 QMEs had dropped out of the California workers comp system over the past five years. At a time when evaluations under the AMA guidelines have become more complex, the graying and thinning of the pool of QMEs has been of great concern to many system observers.

That's the list. In a coming post I'll list links to many of the studies cited in this piece. In the meanwhile, you can use the search box feature on the right column to read posts I've done in 2008 on all these issues.

In coming posts I'll feature a quiz on projected events and trends for 2009. Stay tuned. Happy New Year to my readers.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner under "most Recent Entries")

Santa brought stuff I needed and stuff I didn't need. Sometimes the latter stuff is the fun stuff.

This year, it was a box of "Corporate Flashcards".
They are billed as "the perfect gift for the unemployed or the overemployed".

I feel my understanding of the business world expanding already.

With the set you can bone up on terms like these:
-blamestorm
-ego wall
-envisioneer
-externality
-future-proof
-geek gap
-golden handcuffs
-sheeple
-job spill
-joy-to-stuff ratio
-mindshare
-proof of concept
-repurpose
-reverbiagize
-Scooby snack
-coffee-spitter
-zero-drag
-alpha pup
-download
-lunch bag
-milker
-office creeper
-pain point
-top-of-mind

And of course, there are the old standbys: low-hanging fruit, knowledge management, human capital, face time, bandwidth, value-added, transparency, team player, synergy, swag, spin, self-starter, revolving door, proactive, flexecutive, 24/7, brandalism, next big thing, brain dump, zeitgeist, operationalize, RIF, results-driven, plug and play, corporate culture, mommy track, outsource, high-profile sneezer, seamless integration, planned obsolescence, affluenza, work-life balance, paradigm shift, globalization, viral ideas and outside the box.

Time to put the rubber on the road.....So here's a test....

Andy came in at 9 to get set for morning meetings. The staff was in a
tizzy. Glenda's Macbook was missing. The week before someone had snatched the antique Buddha from the conference room credenza. Everyone was really concerned that the guy there to check the heating vents was really just an OFFICE CREEPER.

Andy couldn't allow himself to get distracted. He had to keep his cool. After all, he saw himself (and others shared this) as an ALPHA PUP.

The 10 o'clock meeting with Herb was critical. Every few weeks they reserved an hour to DOWNLOAD about the project. The firm was trying to transition into another SPACE. Brash and focused, Andy had some ideas about how to increase the firm's MINDSHARE among its targeted customers.

Andy had a job, but not a life. As his roommate said the night before, "you have a crappy "JOY-TO-STUFF" ratio.

But Herb really liked Andy. Andy had no committments, and Herb could pile on the assignments, knowing Andy was a ZERO-DRAG employee.

Andy had to sit in Herb's office while Herb finished up a conversation, scheduling his Wednesday golf match. Looking around, Andy had plenty of time to note the plaques and degrees on Herb's EGO WALL.

Soon Herb was off his call. They could talk about ways to market the product to SHEEPLE, those easily persuaded mass market consumers
(also known as FAD SURFERS). Andy pitched some of his product ideas. The company needed to go for a FUTURE-PROOF solution. The goal? a product that would not be rendered technologically obsolete.

Aardvark Enterprises was well positioned for this task, Andy offered. After all, Aardvark could exploit its advantage in the GEEK GAP, the disparity in technical knowledge between creators and acquirers of systems.

Herb liked what he heard. True, nothing Andy said was so provocative as to be termed a COFFEE-SPITTER. But his approach was good enough to be the foundation of the emerging STRATEGIC INITIATIVE. Next?
They needed to operationalize some of these ideas. Time to DRILL DOWN further.

But that would not happen today. Reception called. The 11 o'clock meeting with the MILKER was starting in the conference room. The MILKER is that dreadful consultant hired by Herb's boss. He's a consultant who seems to drag out studies and projects just to see his consultancy thrive. MILKER was tasked by the big boss to do a BLAMESTORM on why the last project went so poorly. Was it lack of internal planning? Or did it crash and burn because of an EXTERNALITY?

Herb and Andy knew the meeting would suck up all the time before lunch, so they decided to play BUZZWORD BINGO. As MILKER and some of his acolytes droned on about spillover from the company's strategic mistakes and the resulting collateral damage to the firm's goodwill, Herb and Andy marked off buzzwords spoken by discreetly coughing.

As MILKER warned against future marketing disasters, everyone agreed that from now on there had to be PROOF OF CONCEPT before any work on a project would be authorized.

Andy wished he'd brought his barf bag. That thought quickly passed as he realized it was time for lunch.

On his way to the reception foyer, he was snared by the snarky woman at the front desk. "Your lunch bag has arrived", she snickered. This was not a delivery from Subway, Andy knew. The "lunch bag" was a windbag friend of a friend he'd reluctantly agreed to meet with. The guy was out of work and "networking".

Andy wanted to put his fist through the wall right then and there, but there was no escape. And going on workers' comp with a hand injury? Not a pretty picture.

Feeling suddenly altruistic, maybe I should feel sorry for him, Andy thought. He comes out of a legacy industry, all bricks and mortar. All those deadweight retiree costs are killing those rust belters.

All through lunch, the poor schlemiel kept musing to Andy (over his Kerala spiced tiger prawns) on what the next big thing was going to be.
Having escaped his GOLDEN HANDCUFFS when he was given the heave ho as his company moved its back office operation to Bangalore , schlemiel was wallowing in his existential malaise. Schlemiel floated an idea: REPURPOSING Aardvark's product line.

No wonder this guy was office roadkill.

Andy was losing his patience and constantly fidgeting with his Patek Phillipe. How long must I sit here listening to this guy trying to REVERBIAGIZE some of these stupid ideas, he thought to himself. This guy is a loser.

He's the kind of guy that Herb keeps happy with SCOOBY SNACKS; little perks to keep him docile. Throw them a bone now and then and they'll be lifers, Herb always says.

As they left the Kerala Kottage, Andy smiled and, lying through his teeth, promised to keep schlemiel TOP-OF-MIND. Parting, schlemiel reminded Andy that he hoped to be seen as an ENVISIONEER.

And so it was time to go back to work. Andy would spend the whold afternoon in deep thought, trying to come up with a BLEEDING EDGE solution that would thrill Herb and satisfy MILKER. A solution that would synergistically build on Aardvark's CORE COMPETENCY in Web 2.0.
A solution that would satisfy the PRODUCT EVANGELIST. A solution that would qualify Andy for a golden parachute someday.

But, lo! The space/time continuum seems to have collapsed. Without warning, it was dark outside, The office was quiet. 8 o'clock. Time to order take out from Kerala Kottage and go feed the cat. Another day of JOB SPILL.

We try harder, we try harder, we try harder, My job is my life, my job is my life, my job is my life was his mantra as he fell asleep on the couch.

Thanks, Santa. (and kudos to the purveyors of Corporate Flashcards, at www.knockknock.biz; "MADE IN CHINA")

Stay tuned for my Top 10 Developments in California Workers Comp in 2008.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner under "Most Recent Entries")

iPhones, iPods and social networking sites aren't the only newfangled things coming out of Silicon Valley......

Now we have "Aguilar", courtesy of the San Jose-based 6th Appellate District of the Court of Appeal. A link to the text of Aguilar (Hertz Corporation vs WCAB and Manuel Aguilar) is included at the bottom of this post.

Aguilar deals with LeBoeuf issues under the "old" rating schedule. Dueling vocational experts testified as to whether Aguilar, a car detailer, was feasible for vocational rehabilitation. Aguilar had a long work history but limited English language skills and was virtually illiterate.

Two of the three justices noted that Aguilar's physical disability rating would be "around 60 percent", noting that was "even with his significant
physical restrictions". Aguilar was noted to use a cane for ambulation at home and to and from his car. He sometimes required a walker for more extensive outings.

The vocational rehab counselor was of the opinion that with his language and literacy limitations, Aguilar was not able to do even very light duty jobs.

If the correct concept is that the defendant insurer takes the employee as they are, it would seem that it's the injury which creates the inability to compete in the open labor market (pre SB 899) or loss of earning capacity (post SB 899). After all, one of the first cases most law students read is a case about the "eggshell skull" plaintiff, dealing with proximate causation.

Moreover, Aguilar argued that language and illiteracy were "secondary factors" and that the physical restrictions were the "primary reason" he could not benefit from voc rehab. Aguilar was an "old schedule" case, and Aguilar cited the LeBoeuf case in arguing that if he was not able to benefit from voc rehab, he was 100% disabled.

That was an argument accepted by the trial judge and by the WCAB on defendant's appeal. Essentially, the trial judge found that Aguilar was not feasible for retraining and was therefore unemployable. But for the injury he would not have been totally disabled.

Defendant Hertz decided to take the issue to the Court of Appeal.

The 6th Court of Appeal does not reject the ongoing validity of the LeBoeuf opinion. But it does trim LeBoeuf where language and illiteracy are a factor in non-feasiblity for retraining.

Citing the voc rehab testimony, the court noted that Aguilar might be employable despite his physical restrictions and need to use a walker if
"he had better language skills and education".

Like hundreds of thousands of hardworking folks, Aguilar (who worked as much as 80 hours a week and who had been employed by Hertz for around 15 years) had not finished school and had emigrated from Mexico (there is no indication that he was here illegally).

In the court's interpretation of the voc rehab testimony, language and literacy was the factor that took him from being disabled but employable to disabled and infeasible for retraining and thus unemployable.

The problem, as noted by concurring Justice McAdams, is that this case may cause defendants to claim an "Aguilar factor" is cases henceforth.

Each human has natural strengths, abilities and skills.

Even the most talented "Renaissance man" (or woman) has things they can never do. I could never be a sommelier, a fighter pilot, an astrophysicist, an acrobat, a jeweler or a strip club pole dancer. Each involve special skills, intellectual traits, attention to detail, physical agility or sex-based characteristics I don't have.

I also tend to get numbness in my hands and feet when it's cold and wet, a characteristic which would probably make me not feasible for work around water or in very cold settings.

These factors may seem extreme. But could any number of such factors be raised to show that an otherwise disabling injury isn't the cause of loss of all ability to compete or loss of all earning capacity?

If you're a dumb-ass and can't work, is there a dumb-ass apportionment?

Where does this stop? Not at language, obviously. What if the worker was developmentally disabled (e.g. "retarded"). Would such a result obtain, or would we find that offensive?

In a future California that become more "brown" and more Spanish speaking by the day, will some "illiterate" Appalachian migrant pear-picker who falls from a Sacramento Valley orchard find that his inability to speak Spanish is a factor in his "infeasibility"?

Not jumping the shark here. Just asking questions. Questions that concerned Justice McAndrew enough to write a rather eloquent concurring but cautionary separate opinion. McAndrew cautioned against overuse of the "Aguilar factor".

Among my questions about the Aguilar case, I'd note:
-Aguilar was noted to have sustained two separate knee injuries, one to his left knee and one to the right knee, as well as a cumulative injury to wrists and shoulders and an ankle; despite this, no mention is made of the Benson case. Benson (depending on what the First District Court of Appeal does) would seem to have major implications for Aguilar's claim on remand

Here's the link to a pdf version of the case:
http://www.courtinfo.ca.gov/opinions/do ... 032438.PDF

On another topic, here's a link to a piece on a suit filed to challenge the Governor's ability to order worker layoffs and furloughs:
http://www.latimes.com/news/local/la-me ... 0801.story

Stay tuned. I'll be finishing out the year with a column on Top 10 events in California Workers' Comp in 2008, and a quiz for the cognoscenti on likely events in 2009. Happy holidays to all my readers.

Julius Young
www.boxerlaw.com