http://www.workerscompzone.com/index.php Copyright 2010, julius@workerscompzone.com julius@workerscompzone.com en-US SPHPBLOG 0.4.8 http://www.workerscompzone.com/index.php?entry=entry100905-101953
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.

Morain's piece can be found here:
http://www.sacbee.com/2010/09/05/300470 ... ia%20Forum

Julius Young
www.boxerlaw.com]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100905-101953 julius@workerscompzone.com Sun, 05 Sep 2010 17:19:53 GMT http://www.workerscompzone.com/index.php?entry=entry100902-131528
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

Here's a link to a piece I did several years ago on employer fraud:
http://www.workerscompzone.com/index.ph ... 818-110358

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.

Here's a link to the text of SB 1254:
http://www.leginfo.ca.gov/pub/09-10/bil ... rolled.pdf

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".

It's likely that the Governor will sign the bill.

Here's the official analysis:
http://www.leginfo.ca.gov/pub/09-10/bil ... _floor.htm

Stay tuned.

Julius Young
www.boxerlaw.com

]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100902-131528 julius@workerscompzone.com Thu, 02 Sep 2010 20:15:28 GMT http://www.workerscompzone.com/index.php?entry=entry100829-221752
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.

Here's the link to the text of AB 933:
http://www.leginfo.ca.gov/pub/09-10/bil ... en_v96.pdf

Here's the tally of the Assembly vote on the bill:
http://www.leginfo.ca.gov/pub/09-10/bil ... floor.html

And here's the California Senate vote tally:
http://www.leginfo.ca.gov/pub/09-10/bil ... floor.html

Stay tuned.

Julius Young
www.boxerlaw.com]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100829-221752 julius@workerscompzone.com Mon, 30 Aug 2010 05:17:52 GMT http://www.workerscompzone.com/index.php?entry=entry100827-205402
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.

It's titled "Current Challenges for Nordic Workers Compensation Systems" by Janne Pekka. The presentation was done for an insurer, Munich Re:
http://www.munichre.com/app_pages/event ... _reini.pdf

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.

Everyone is trying to get it right, not just us.

Stay tuned.

Julius Young
www.boxerlaw.com


]]> Understanding the CA WC system http://www.workerscompzone.com/index.php?entry=entry100827-205402 julius@workerscompzone.com Sat, 28 Aug 2010 03:54:02 GMT http://www.workerscompzone.com/index.php?entry=entry100824-150138
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."

Here's a link to Fox's piece:
http://www.foxandhoundsdaily.com/blog/j ... comp-redux

Stay tuned.

Julius Young
www.boxerlaw.com

]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100824-150138 julius@workerscompzone.com Tue, 24 Aug 2010 22:01:38 GMT http://www.workerscompzone.com/index.php?entry=entry100824-003433 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.

It's a cycle I noted in my recent post, "Hurricane Season":
http://www.workerscompzone.com/index.ph ... 815-091042

You can find Dan Walter's piece, "Workers' Compensation War Poised for Blowup" here:
http://www.sacbee.com/2010/08/23/297575 ... %20Walters

Stay tuned.

Julius Young
www.boxerlaw.com
]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100824-003433 julius@workerscompzone.com Tue, 24 Aug 2010 07:34:33 GMT http://www.workerscompzone.com/index.php?entry=entry100820-121424
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.

Here's a link to a pdf of the Guzman II decision:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf

And here's a link to the decision of the 6th District:
http://www.courtinfo.ca.gov/opinions/do ... 034853.PDF

Stay tuned.

Julius Young
www.boxerlaw.com]]> Understanding the CA WC system http://www.workerscompzone.com/index.php?entry=entry100820-121424 julius@workerscompzone.com Fri, 20 Aug 2010 19:14:24 GMT http://www.workerscompzone.com/index.php?entry=entry100818-234502
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).

Yesterday the WCIRB submitted its pure premium rate filing to the California Department of Insurance. You can see the filing here:
https://wcirbonline.org/wcirb/resources/rate_filings/2011_rate_filings.html

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."

The message to employers? Suck it up.

Stay tuned.

Julius Young
www.boxerlaw.com


]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100818-234502 julius@workerscompzone.com Thu, 19 Aug 2010 06:45:02 GMT http://www.workerscompzone.com/index.php?entry=entry100815-091042
Unsettled weather brings tropical storms, some of which turn into hurricanes. Some hardly make a dent, like recent Hurricane Alex. Some look threatening, but fade into "tropical depressions", like recent Hurricane Bonnie.

But others, (like Katrina or the Hurricane Hazel of my childhood memories in the Carolinas) leave a swath of change in their wake.

These hurricanes start with peculiar atmospheric conditions. Our weather scientists track those as they arise, knowing that many times it will dissipate.

But not always.

So it is in California workers' comp. The last big comp hurricane was in 2003/2004.

Pressures inevitably develop. Winds begin to strengthen. Thunder is heard in the distance.

So it is right now.

The thunder this week was news that the California Workers' Compensation Insurance Bating Bureau will soon be filing a request for a 30% increase in workers' comp rates.

More thunder was heard, as some in the employer community began to sound alarm that the Schwarzenegger workers' comp reform agenda was threatened. The argument was made by John Kabateck executive director of the National Federation of Independent Business in a piece "Workers' Comp May Be Headed for Another Rough Ride in California":
http://www.insidebayarea.com/opinion/ci_15720925

Perhaps the storm will pass.

Insurance commissioner Poizner will hold hearings on the WCIRB request.
Insurers are free to raise rates no matter what Poizner does, of course.
But the hearings may provide shed important light on the strength of the gathering winds.

The WCIRB's recent decision to seek an increase of 30% broke down along insurer members of WCIRB versus the public members. And there have been recent charges that some WCIRB public members are not allowed access to key policy-setting meetings.

All this sturm and drang insures that there will be extra interest in the hearings surrounding the upcoming WCIRB rate hearing.

There will be analysis of how much the insurers are really profiting......whether they are getting a handle on controlling loss adjustment expenses....and whether results from SCIF are skewing figures applicable to the rest of the industry.

A major part of the brewing storm is medical treatment costs.

Within the past several weeks we've seen just how hard it is to control costs in the California comp system. No group wants to give ground.

Part of the DWC's 12 point cost cutting agenda was to achieve savings from ambulatory surgery center fees. An earlier plan to cut fees from ambulatory surgery centers had been expected to save $70 million in system costs.

A current proposal would cut the ambulatory surgery center fee structure by only about $40 million.

The surgery centers may have their reasons to object, and object they do to even the lesser cut.

Parties to the system don't want to take a haircut. And some of the surgicenter doctors threaten to pull out altogether if they are forced to take a hit.

We saw a version of this playing out last week with a bill to control the costs of compounded medicines. The bill, AB 2779 (Solorio), would limit reimbursement for compounded prescriptions unless they were proved to be medically necessary, and the Medi-Cal fee schedule would govern such medicines.

Increased use of compounded medicines appears to be a growing cost driver in the system and a tempting profit center for some physicians.

While there may be a case that can be made occasionally for their use under special circumstances, widespread use of compounded medicines would appear to be abusive.

AB 2779 passed out of a California Senate committee but may well be watered down if it moves forward at all.

Forcing haircuts is hard.

And we've seen that in recent efforts to devise a different fee structure for doctor payments.

On August 17th the DWC will be holding a hearing in Oakland on its efforts to reform the fee schedule:
http://www.dir.ca.gov/dwc/dwc_newslines ... 40-10.html

A recent version of the fee schedule elicited strong comments from doctors, some of whom.....well, you guessed it.....threatened to stop treating injured workers.

So let's take stock.

Some unhappy stakeholders. Employers perhaps facing significant premium increases in a down economy. Insurers claiming that they are losing money. Injured workers denied a statutorily mandated benefit adjustment.

It's starting to look like tropical storm time.

Whether this blows on through, or strengthens to a hurricane, time will tell.

Julius Young
www.boxerlaw.com]]> Political developments http://www.workerscompzone.com/index.php?entry=entry100815-091042 julius@workerscompzone.com Sun, 15 Aug 2010 16:10:42 GMT http://www.workerscompzone.com/index.php?entry=entry100809-214622
Dabblers are attorneys who dabble in workers' comp.

In the past, at the boards I've frequented (largely Oakland & San Francisco, and Sacramento earlier in my career) there were always a group of dabblers who came and went.

These were usually attorneys who did a handful of cases a year. Sometimes they were personal injury attorneys who handled an occasional comp case.

Sometimes they were general legal practitioners who decided to try their hand rather than refer out the comp case. Others were young attorneys who tried to get a foothold in comp but never attracted more than a smattering of cases. Some may have been induced to handle the comp case by their doctor or chiropractor friend who was treating the worker.

Some experienced attorneys tried to be welcoming of the dabblers. After all, everyone has to start somewhere.

But others winced as dabblers handled cases without even a patent understanding of comp terminology or case law. Any attorney who has sat as a judge pro tem, as I have, will understand.

Discussing the matter today during a java break, several of us noted that the dabblers are disappearing.

Comp has become too complicated for the dabblers. With UR deadlines and MPNs, Benson, Almaraz/Guzman, Ogilvie, lengthy EAMS forms, and AMA Guides that are so complicated, many of the dabblers are quickly flummoxed. Even top-shelf applicant attorneys feel challenged and stressed.

The day when young lawyers took a case or two and "fell into comp" is disappearing.

The dabblers need to dabble elsewhere.

Stay tuned.

Julius Young
www.boxerlaw.com]]> Understanding the CA WC system http://www.workerscompzone.com/index.php?entry=entry100809-214622 julius@workerscompzone.com Tue, 10 Aug 2010 04:46:22 GMT