In a recent post ("When Push Comes to Shove"), I discussed the New York Times report on the incident when Meg Whitman apparently shoved an eBay subordinate.

Whitman has refused to give a full accounting of the incident or the ensuing out of court settlement with Young Mi Kim.

Thus, it's with interest that I read a piece in CalBuzz today which noted the shifting versions of the event given by Whitman. The CalBuzz article puts this in the context of a number of other topics on which Whitman given inconsistent versions, including her voting record, her residence, and the contents of her campaign ads.

Here's the article, worth checking out:
http://www.calbuzz.com/2010/06/wannabe- ... sequences/

The link to my post on the shoving incident is here:
http://www.workerscompzone.com/index.ph ... 617-220806

This should be a matter of great interest to those interested in employment law and workers' rights. What does it say about Whitman's personality and her fitness for office? These are not trivial questions.

The Whitman campaign should open the files on the incident so voters can judge for themselves.

Stay tuned.

Julius Young
www.boxerlaw.com

Your intrepid blogger has just returned from the 2010 CAAA summer convention, held in Monterey.

For those in the trenches of comp practice, these are times of some ambiguity. It's an ambiguity that affects applicants and defendants, providing a fertile basis for settlement for creative lawyers.

As usual the CAAA convention showcases some of the cutting-edge legal theories from some of California's top applicant attorneys. The CAAA convention is not a liquored-up schmoozefest of convention junketeers. It's a focused set of meetings where top-flight materials are distributed.

Here's a sampling of some themes and arguments that were discussed:

The Guzman case has been argued, but not yet decided. At the moment doctors are in a difficult position. Unless asked the right direct questions by counsel, many doctors feel uncomfortable using alternative AMA formulations of the most accurate" impairment.

But asked the right questions, many QMEs/AMEs may be willing to identify impairment by analogy or use alternative charts, tables or methods to describe impairment under the AMA Guides.

The Ogilvie case remains something of a puzzle. A case that initially seemed to call for easy use of EDD earnings data has morphed into a much more sophisticated analysis of post-injury earnings loss within the context of "Montana factors". Labor market experts may often be necessary, and there are struggles over how and when the experts will be paid, though Labor Code 5811 probably requires cost reimbursement.

The occasional WCAB panel decision in Almaraz/Guzman II and Ogilvie provides some guidance in cases at the margins.

The COLA case (commonly known as the XYZZ case or the Duncan case)
is in limbo, as the California Supreme Court has accepted the case but not yet set arguments.

Social Security cases (I was a conference speaker on the Social Security panel) may have a synergistic effect on the comp case. RFC forms filled out by physicians may be useful in Ogilvie arguments and in disputes over the application of Labor Code 4662 (conclusively presumed permanent total disability).

Vocational evidence is likely to be frequently used in cases involving 4662 (proving total permanent disability "according to fact"). 4662 is not a rebuttal of the rating schedule. Either you have total disability according to fact or you don't.

There's great interest in recognizing that disabilities are synergistic. The combined values chart is rebuttable.

The Mendoza v. Huntington Hospital WCAB en banc case will be appealed. Mendoza allows a defendant to request a panel QME even after the defendant has denied the claim.

There's developing interest in exploring rebutting the GAF conversion scale by using the AMA Guides Chapter 14 in psyche cases. The GAF to WPI conversion scale appears to be an arbitrary construct and as such may be vulnerable to attack.

It's clear that the demands on California workers' comp practitioners have grown. Cases can be much more complicated, with Benson issues, apportionment issues, old vs, new schedule issues, rating issues, UR rebuttal issues, and on and on.

As panelist Alan Gurvey noted, "when you walk through the jungle, be prepared".

Stay tuned. I'll be discussing some of these concepts in coming posts.

Meanwhile, if you're an iPad or iPhone user, you can create a button to reach workerscompzone.com. After agetting to workerscompzone.com via your search engine, click on the cross next to the url box to "add to home screen". You'll create a workerscompzone button to give you quick access to the blog.

Julius Young
www.boxerlaw.com

In these challenging economic times, you'd think that policymakers would want to keep as many jobs here in California as possible.

Good, skilled jobs. Like jobs for physician UR reviewers.

But currently utilization review docs don't have to be California licensed.
In 2008 Governor Schwarzenegger vetoed an attempt to impose a California license requirement on UR reviewers. That bill, carried by now termed-out Assemblywoman Sally Lieber, was AB 2969.

AB 933, carried by Assemblyman Paul Fong of Cupertino, would require UR reviewers to be licensed. Here's a link to the current bill language:
http://www.leginfo.ca.gov/pub/09-10/bil ... en_v98.pdf

One advantage of requiring California licensing for UR docs is that it will cut down on the problem of treating docs having trouble contacting UR because of time zone issues. Currently a California treating doctor who is in surgery in the morning has almost zero chance of speaking to a UR reviewer in Florida who is gone by the time the Cali treating doctor gets back in the office from the surgicenter.

These are the sort of little realities that frustrate doctors. Many end up in the costly and time consuming QME process.

There's a good chance the Governor will veto AB 933 if it reaches his desk. The bill advanced out of Senate committee yesterday, but still faces an uncertain future.

With all the concern about generating California jobs and revenue for California, it's hard to defend allowing out of state doctors to do California utilization review.

It's time to keep the jobs here.

Julius Young
www.boxerlaw.com

Your mind may well be on other things than comp.

It's summer, and you're trying to squeeze into last year's Speedo. You're trying to figure out whether the recovery is just around the corner or whether its another bear market just lurking.

You're debating getting TiVo so you can block out all those political commercials you're about to suffer through. You figure if you hear one more politician utter some sap about good clean energy jobs your're going to scream.

But your brother, recently employed by the census, reminds you that he could join the the soon-to-be-organized National Weatherstrippers Union.

As I said, your mind may not be on comp stats. But if it is........

Workers' comp premium is way down, as I've noted in several recent posts.

Claims costs have risen somewhat. according to a CWCI study of 2007 vs 2006 claims costs. That study noted a 4% increase over those years.

None of this is a big surprise, and its an analysis of data that's several years old.

Here's a link to more information about the numbers:
http://www.claimsjournal.com/news/west/ ... 110925.htm

Stay tuned.

Julius Young
www.boxerlaw.com

Undoubtedly many of us in the workers' comp and employment law world are reading with great interest the revelation that Governor candidate Meg Whitman was involved in an alleged shoving incident while serving as CEO of eBay.

The story surfaced in the New York Times several days ago.

The incident dates back to June 2007. The allegation is that Whitman was being prepped by eBay employee Young Mi Kim for a media interview that day.

The Times story cites sources who noted that Ms. Kim was preparing talking points on a whiteboard in Whitman's personal conference room at eBay in San Jose when Whitman is said to have used expetives and shoved Kim.

Litigation apparently followed, and a settlement appears to have been reached in the amount of $200,000 after involvement of mediators from JAMS. The terms of the settlement are confidential, but The Times piece by Brad Stone cites several former eBay employees as confirming the resolution.

Ms. Kim apparently left eBay for about 4 months but eventually returned in October 2007. Whitman left the company in early 2008.

While it's good to know that Ms. Kim appears to have been compensated if she was shoved, what's the deeper significance of this event?

The easy answer is that it's good to be king or queen.

At many companies, if it was verified that a supervisor shoved a subordinate, the supervisor would likely be severely reprimanded. And imagine what would occur if the shoe was on the other foot.

If a subordinate cursed at and shoved a supervisor, the employee would be shown the door.

According to the piece in the New York Times, Meg Whitman was counseled by eBay HR lawyers and by a key eBay executive, Henry Gomez.

But it's good to be king or queen. Rules that apply to mere mortals are either loosely applied or don't apply at all.

It's unlikely that Whitman really paid any real personal price for her behavior, either professionally or financially. Whatever was paid essentially was a blip on the financial radar of eBay at the time.

Unless further documents regarding the event are leaked, we'll never have any indication of how seriously the eBay board took the incident.

However, the story is troubling in the context of Whitman's run for Governor. The press has little access to Whitman, so it's unlikely she will be forced to answer questions about the incident.

Whitman lives large. This is a person and a candidate who doesn't have to play by the rules that most of us must follow. Billionaires and CEOs have their own rules. They may feel entitled to shove an adviser they deem trifling.

But Whitman will not be able to sustain this bubble. Sooner or later as a candidate-or a Governor-Whitman will learn that in politics and government you can't always set your own rules.

Here's the link to the New York Times piece:
http://www.nytimes.com/2010/06/15/us/po ... itman.html

Stay tuned.

Julius Young
www.boxerlaw.com