Another Furlough Day Would Be Bad News
Tuesday, June 30, 2009 | 0
By Julius Young
There's word that Governor Schwarzenegger is threatening a third state employee furlough day.
Despite "user funding," only some SCIF employees are currently exempted from the current two-day furlough.
Three days of furloughs (each month) would further slow business at the state's Workers' Compensation Appeals Boards. User funding is not saving the WCAB from pain.
The legislative impasse continues. In late afternoon remarks to the California Applicants Attorneys Association, State senator Mark DeSaulnier noted that "Dickens would be amazed if he came back to California now.".DeSaulnier, chairman of the Senate Industrial Relations Committee, noted that we currently have a "Winchester House" of government by initiatives that have led us to this crisis.
Also of interest: DeSaulnier noted that it is likely that Governor Schwarzenegger will not support the bill to extend the right to predesignate a doctor before a worker is injured.The right to predesignate sunsets at the end of 2009 unless it is extended by statute.
DeSaulnier has his hat in the ring for the U.S. House seat being vacated by Ellen Tauscher. Also running is Lt. Gov. John Garamendi, who many disabled worker advocates feel played a role (as a former Insurance Commissioner) in creating a crisis mentality that led to the harsh 2004 workers' comp reforms.
A Smattering of Thoughts From a Few Days at "The Lake"
Folks in Sacramento call it The Lake. You may know it as Tahoe.
The nation's second deepest lake, the summer Tahoe features a handful of snowy peaks and mahogany Gar Wood and Carlo Riva "woodie" runabout boats as well as gorgeous hiking and biking trails and classic watering holes.
It's here, at nearby Squaw Valley, that the California Applicants Attorneys Association recently held its summer conference. As usual, CAAA put on a substantively challenging conference.
There was lots of discussion of new QME regs and procedures, Ogilvie, Almaraz/Guzman, COLA cases, Labor Code 4662 cases, 15% bump up/
down
And as you'd expect, there was much talk of recent CAAA losses: Benson (the demise of "Wilkinson") & Weiner (the demise of voc rehab) & Smith/Amar (refusal to award attorney fees to fight treatment denials). Yet, the mood was quite upbeat. CAAA is nothing if not a committed, creative and adaptable organization.
The following are some random paraphrased snippets I've subjectively chosen for your reading pleasure:
Assembyman (and Attorney General candidate) Pedro Nava):
You do God's work...
The notion that injured workers want to sit home and watch TV is an abomination...
You have friends in the legislature...
The notion that injured workers want to sit home and watch TV is an abomination...
You have friends in the legislature...
Brad Chalk (Santa Rosa) & Alex Wong (San Francisco):
Most chapters in the AMA Guides are based on anatomical loss, not functional loss; when a generic AMA rating does not adequately reflect how the injury affects the worker, the doctor has a right and duty to explain how and why. Chalk and Wong referred to many tables in various chapters which lend themselves to analogies in rating permanent impairment. They noted the Ferras panel decision in which a three-commissioner panel upheld a WCJ decision that found use of a table in another AMA chapter more accurately described the impairment (Ferras vs. United Airlines).
Attorney Skip Tescher:
With Almaraz/Guzman, films and videos are back in...
We are lawyers....the WCAB is challenging us to be lawyers....take the evidence and run with it.
We are lawyers....the WCAB is challenging us to be lawyers....take the evidence and run with it.
CAAA consultant Mark Gerlach:
The board is still misinterpreting....FEC is not DFEC...
Commissioner Caplane got it right in her dissent in Ogilvie.
Commissioner Caplane got it right in her dissent in Ogilvie.
L.A. attorney Jack Breslavsky and Redding's Skip Tescher:
With Ogilvie there may be a "Benson bounce," The more they "Benson you" the more you may make due to the way Ogilvie affects the ratings.
L.A. attorney Barry Hinden:
In response to a question about what to tell clients who asked whether returning to work would affect their case (in light of the fact the Ogilvie formula looks at three years post injury earnings): No workers' comp award makes up for loss of a job (to wide applause).
Central coast attorney Bill Herreras:
The purpose of apportionment...hat the employer is charged with
nothing more and less than it caused...
Unfortunately it appears that "Benson is the law."
nothing more and less than it caused...
Unfortunately it appears that "Benson is the law."
San Jose's Joe Capurro and Sacramento's Melissa Brown:
We'll win the apportionment war slowly...
It's disturbing that in Benson the law changed but they didn't allow for development of the record.
In the cases we'll need to look carefully at whether there is really one long c/t.
It's disturbing that in Benson the law changed but they didn't allow for development of the record.
In the cases we'll need to look carefully at whether there is really one long c/t.
Bill Herreras (Grover Beach):
Merv Glow (a CAAA icon and former WCAB commissioner) always admired losers... it's easier to claim the laurels of victory than the yoke of defeat.
The appellate approach should look to the purposes of a statute, not to its absurdity. In smith/Amar the California Supreme Court makes the statute an absurdity
The appellate approach should look to the purposes of a statute, not to its absurdity. In smith/Amar the California Supreme Court makes the statute an absurdity
L.A. attorney Lawrence Silver:
The courts have not been consistent....in Benson the appellate court was activist and in Smith, strict constructionist.
In Ogilvie the board misunderstood DFEC...DFEC is looking forward versus what someone did (which is what RAND looked at)....a (bone) of contention is the time frame for wage loss studies...RAND used three years.
Ogilvie is wrong, but it's the law...and it will produce a silver lining so that in some cases the app attorney may argue for Benson.
Ogilvie is wrong, but it's the law...and it will produce a silver lining so that in some cases the app attorney may argue for Benson.
Ron Feenberg (Los Angeles)
Voc rehab is not dead...an existing VR contract is still alive...if you are in plan, you are still in VR....the WCAB can enforce that contract and attorney fees withheld pursuant to contract are enforceable.
CAAA lobbyist Don Green:
Recommends Attorney General Jerry Brown as gubernatorial candidate....Brown signed a bill allowing employees to have free choice of medical treatment and a bill doubling PD benefits...his WCAB commissioner appointments were outstanding.
Pasadena's Jamie Berenson:
It may be easier to try a 4662 case than at 49-99% case...
You have to present what the worker is going through.
You have to present what the worker is going through.
San Jose's Art Johnson:
Labor Code 4662 can be used as basis for rating...4662 is a conclusive presumption, more powerful than a presumption. Under the AMA impairment system you can be closely approaching death, with organ systems shutting down and yet you are not 100%; but the reality is that you can be totally disabled long before they put you in the ground in a box.
Under Tremeroux, there's no apportionment in a 4662 case...
You've got to get the judge in the gut on these cases before you get the judge in the brain....present a compelling case...
Under 4662 an injury to the brain would encompass psych disability as well as head trauma, post concussive disorder, etc.
Johnson noted the Sally Perez case (VNO 0459871), in which the WCAB panel upheld a WCJ finding of 100% in the case under Labor Code 4662, with the WCAB panel citing this part of 4662:
"In all other cases, permanent total disability shall be determined in accordance with the fact."
L.A. attorney Jack Goldfarb:
This is not for all our cases....those who aren't going to return to work are the ones we need to fight over.
San Jose's Tom Butts:
Consider asking your own client questions in deposition to get their story on the record; many QMEs will look at this more carefully than what is said in a brief office exam.
Oakland Judge Lilla Rados:
Put on a prepared case so I can make my decision while it's fresh in mind....don't make me think for months what the outcome should be.
Attorney Tom Martin (Orange County)
You're the tough ones...
The last five years have been disorienting for many of us. We're learning how to navigate through the system...We're light years from where we were four years ago.
Remember what Chico Marx says to Margaret Dumont in "Duck Soup"...who are you going to believe? Me or your own eyes?
The last five years have been disorienting for many of us. We're learning how to navigate through the system...We're light years from where we were four years ago.
Remember what Chico Marx says to Margaret Dumont in "Duck Soup"...who are you going to believe? Me or your own eyes?
The Foote case and the Farras case give us a clue where the WCAB will go with Almaraz/Guzman...
We've got to "be an army" to challenge doctors that some of these pathologies didn't really play a role.
We've got to "be an army" to challenge doctors that some of these pathologies didn't really play a role.
As I left the conference, one experienced attorney leaned over to me and whispered that "It's a mixture of the old and new....what's exciting is that the trend is away from cookie-cutter justice. We can need to focus on the client and how their injury impacts their functioning."
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Julius Young is an applicants' attorney with Boxer & Gerson LLP in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com
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