Hey, it's not Aaron Burr versus Alexander Hamilton. No dueling pistols here.

But we are in modern times. We have dueling lawsuits.

This time it's Arnold Schwarzenegger versus State Controller John Chiang.

Schwarzeneger has filed to get a court order to force Chiang to cut state woker pay to minimum wage levels while the state has no budget. Chiang has filed his own action, seeking to throw out the order to cut salaries that was sent to him from Schwarzenegger's Department of Personnel Administration.

Here's more on the Chiang lawsuit in a piece by Wyatt Buchanan from the San Francisco Chronicle:
http://www.sfgate.com/cgi-bin/article.c ... &tsp=1

It's a duel of great interest to the folks who work for DIR/DWC and the WCAB.

Stay tuned.

Julius Young
www.boxerlaw.com

As a blogger on California workers' comp issues, I sometimes get interesting calls.

Yesterday's call? From doctor's group (to protect confidentiality, I'll mask any particularizing details).

The medical practice is debating whether to join an MPN and whether it wants to treat injured workers under California's workers' comp system.
The caller was seeking input from sources with knowledge about California's workers' comp system.

At first, I envisioned a need to educate the caller about issues that concern providers....utilization review....fee schedule issues....medical treatment guidelines.....lien claims.......

I quickly realized that was unnecessary. The caller already understood what was going on in those areas quite well.

The caller was really looking for something else. What's the benefit in treating workers' comp cases? Why should our doctors do it?

This physician noted that the medical group was already very busy with non-workers' comp patients. The group was a member of various HMO
groups.

Why should they take workers' comp? Was it worth getting involved in the hassles of paperwork documentation and authorization disputes?

I wondered whether their HMO contracts bound them to treat injured workers. The caller didn't think so.

I noted that with changes coming under Obamacare, healthcare reforms could affect treaters in unanticipated ways. Perhaps the doctor group wanted to diversify into workers' comp.

The caller was unmoved.

Did the doctors feel a sense of civic duty to treat some share of the state's working folks? After all, many of the doctors live in the community. The workers they would be treating serve the doctors in various capacities. I appealed to the communitarian, altruistic impulses of the caller.

The caller was unimpressed.

I tried an economic argument. Perhaps, I noted (not having stats to back up my hypothesis) if the doctors did not take comp cases, would that have a negative effect on the economics of local MRI facilities and surgicenters which may be partially owned by these doctors? Would other treating doctors refer patients to alternative surgicenters and MRI centers instead, negatively affecting the calling doctors' investments?

The caller noted that this argument could resonate with some of his partners, but might not be compelling.

As the call ended, I wondered how often this debate goes on in partnership meetings at doctors groups. Was the call just an "outlier", or was it a mainstream wake-up call showing deep dissatisfaction among doctor groups with practice in the comp system?

Julius Young
www.boxerlaw.com

State Controller John Chiang says he'll continue to resist Schwarzenegger's efforts to impose the minimum wage on state workers as long as there is no state budget.

But Chiang now has to devise a legal strategy to deal with the California Court of Appeal 3rd District decision rendered yesterday in Gilb v. Chang.
In that decision, 3rd DCA justices Rick Sims, Vance Raye and Arthur Scotland upheld a ruling by Sacramento Superior Court Judge Timothy Frawley that allows the Department of Personnel Administration to order Chiang to cut state worker wages when there is no state budget.

Here's a pdf of the ruling:
http://kqed02.streamguys.us/anon.kqed/b ... DCApay.pdf

Chiang has noted that the state's computer and accounting system do not make it feasible to do the reductions that have been ordered.

The 3rd DCA opinion was rendered in connection with the 2008 Schwarzenegger order to lower state worker salaries due to the 2008 budget increase.

But in response to Chiang's claims about the computer and accounting systems the 3rd DCA noted:
"We decline to consider the feasibility issue, because it involves variables that may or may not recur in the future, depending on the content of any future pay letter by the DPA, and the state of the evidence in any future litigation. We will not speculate as to the future capabilities of the payroll system that will be in place at the time of future budget impasses. We recognize the Controller's payroll chief attested that a pending upgrade (the 21st century Project) will not solve the problems that make unfeasible compliance with the DPA's interpretation of White v. Davis. However, that does not necessarily excuse or preclude the Controller from implementing other changes to make compliance feasible."

In coming days we'll see whether Chiang appeals the 3rd DCA decision to the California Appeals Court or whether he pursues an injunction in Sacramento Superior Court against the 2010 pay cut order, or both.

Chiang has vowed to fight. It's a fight of great interest to employees of the WCAB and the Division of Workers' Compensation.

Here is Chiang's response to the order from Debbie Endsley, Director of the Department of Personnel Administration:
http://www.sco.ca.gov/Files-EO/07-02-10lettertoDPA.pdf

And here is the brief statement Chiang made on the 3rd DCA ruling, noting that it is not a simple software matter to reduce pay and then comply with wage payment timelines once a budget is enacted:
http://www.sco.ca.gov/eo_pressrel_contr ... uling.html

Here's a link to the text of the 2003 California Supreme Court ruling in White v. Davis (133 Cal.Rptr. 2d 648, 30 Cal 4th 528, 68 P.3d 74):
http://scholar.google.com/scholar_case? ... i=scholarr

Stay tuned.

In a few days I'll be doing a post of the top 10 developments in California workers' comp for the first half of 2010.

Julius Young
www.boxerlaw.com
(have an iPhone or iPad? you can create a workerscompzone.com widget/button by clicking on the cross to the left of the url box)

Today Governor Schwarzenegger made good on this threat to cut state employee salaries if there's no state budget.

Schwarzenegger has ordered most state worker pay cut to the federal minimum wage until there is a budget. That is likely to be after a long, hot summer.

The Administration claims that it can do that under the ruling in White v. Davis, a 2003 California Supreme Court case.

Based on the experience we've seen with the state worker furloughs over the past year, it's unlikely that "user funded" agencies such as the California Workers' Compensation Appeals Board will be exempted if Schwarzenegger has his way.

Since the budget chasm is so wide, reaching a budget compromise in an election year may set all records for delay. So even if state workers are eventually given back pay after a budget deal is struck, the economic consequences could be devastating for many of the folks at the WCAB and at the DWC.

Wait. There's more.

According to a piece by Jon Ortiz in today's Sacramento Bee, "Some employees, such as doctors and lawyers, would get no pay because federal exempts them from any minimum wage requirement". Huh?

Would that include judges too?

But State Controller John Chiang, a Democrat, has announced that he will resist the Schwarzenegger order. There's a pending case in the Court of Appeal over the legality of a similar order by Schwarzenegger in 2008.
So this battle between Schwarzenegger and Chiang may be settled by the courts, perhaps months from now.

It's all part of a Kabuki dance as the state tries to stay afloat.

If you see your favorite WCAB clerk or judge popping a few Valium, now you know why.

Here's a link to the Schwarzenegger minimum wage pay letter:
http://blogs.sacbee.com/the_state_worke ... letter.pdf

Stay tuned.

Julius Young
www.boxerlaw.com

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