Home page — 2006-12-06
|
Schwarzenegger to hold the line
From today's LA Times article: "The workers' comp issue, though red-hot during the 2003 recall campaign, hasn't had much of an airing this election season. Schwarzenegger vows to hold the line against significant changes. His Democratic opponent, state Treasurer Phil Angelides, said that if elected he might adjust parts of the overhaul." So there you have it. The Governor will hold the line against any changes to SB 899 and Angelides says he "might" adjjust parts of the overhaul. > posted by Charles Wear > 10/17/06; 3:40:39 AM Administrative Director predicts no rise in PD rates Via WorkCompCentral: California's top workers' compensation official said Wednesday that she
will not adjust the Permanent Disability Rating Schedule to increase
benefits if research now underway shows a significant increase in the
number of injured workers who return to their jobs.
> posted by Charles Wear > 9/21/06; 4:46:10 AM
During an interview with WorkCompCentral, Division of Workers' Compensation Administrative Director Carrie Nevans said her agency is now studying return-to-work rates to compare with the results of a 2003 study by the Rand Institute for Civil Justice. After that work is done, she said the DWC will spend another 18 months comparing wage losses of permanently disabled workers to find out if the rating schedule effective in January 2005 cut too deeply into benefits. "My hunch is that return-to-work rates are going to be much higher," Nevans said. "If that's the case, then I don't think there will be any adjustment until we see the actual wage loss." The Bill is on the Governor's desk I wrote this about two weeks ago and never got a chance to post it... Okay, SB 815 is on the governor's desk for signature. The bill essentially phases in a doubling of permanent disability awards for workers' compensation injuries over a three-year period beginning in 2007. Is there any way that the governor, who is making the workers' compensation reform of 2004 a pillar of his reelection campaign will sign it? I don't think so. He has to take action by September 30, however, or the bill becomes law by default. Will he veto? Governator terminates benefits upgrade WorkCompCentral reports: California
Gov. Arnold Schwarzenegger on Tuesday vetoed Senate Bill 815, a measure
that would have doubled permanent disability benefits over three years.
> posted by Charles Wear > 9/20/06; 5:43:46 AM
"The changes proposed by SB 815 are not based on a comprehensive analysis, and will double the cost of permanent disability benefits," Schwarzenegger said in his veto message. "As we look to build upon the economic successes of the last three years, I simply cannot support a measure that would reverse many of the economic gains now powering California's economy." Today's the day Today's the last day for Sen. Perata and the State Assembly to live up to what legislators have been promising injured workers all year: that they would fix the draconian cuts made by Andrea Hoch's ill-conceived 2005 rating schedule for permanent disability. In my 8/4/06 post I predicted that no bill would pass. We will see. > posted by Charles Wear > 8/31/06; 5:28:32 AM Maybe I was wrong... Okay, I take it back. State Sen. Perata has put forth a bill that will amend the amount of permanent disability awards and significantly increase them starting with 2007. Analysts at workcompcentral indicate that Assembly Speaker Nunez is reluctant to pass a bill just for the governor to veto. There is one week left for all of this last minute maneuvering. > posted by Charles Wear > 8/25/06; 6:04:09 AM Do you smell the sellout? The Governor and the democratic leaders of the legislature announced an increase in the minimum wage. (link unavailable) Buried in the story is a minor concession for "some" injured workers, the right to select their own treating physician. Did Perata and Nunez sellout permanently injured workers in return for the political capital they can gain by raising the minimum wage? We will know by August 31. That was the date Perata promised to have a bill that would increase permanent disability benefits on the Governor's desk. And by the way, where is Angelides on the workers' compensation issue? He appears to be missing in action. > posted by Charles Wear > 8/22/06; 4:38:26 AM Dreaming of an increase According to a report in WorkCompCentral, California State Senate President, Don Perata has promised a bill intended to "fix" the permanent disability schedule on the governor's desk by the end of the Assembly session. Now for you campers who have been following this closely, Perata and his Assembly colleague, Fabian Nunez, have been promising to fix the more than 50% cuts in permanent disability awards made by Andrea Hoch's 2005 schedule since the beginning of 2006. So far, nothing. Here's what I expect to happen: Nothing! There will be a reason, there will be an excuse, but nothing will happen. Even if a bill reaches the governor's desk, here is my second prediction, he won't sign it. Let's watch and see. > posted by Charles Wear > 8/4/06; 4:56:00 AM If you are hurt, report your injury One of the common mistakes injured workers make is this: they don't report their injury in a timely manner. Keep in mind, an employer can't provide medical treatment or benefits if she doesn't know you have been hurt! Typically, this mistake is most common with the late in the shift or weekend injury. The incident doesn't seem like much. You figure, if I tough it out, ice it down tonight, I'll be good as new in the morning. This might even go on for a week, or so. Then you wake up one morning and you are in severe pain and you can't move. This kind of scenario gives employers and claims representatives all kinds of ideas about fraud and misrepresentation which leads to more tomfoolery and chicanery. Do it right: Report your injury when it happens and thoroughly. For help you can visit my "starting a claim" page. > posted by Charles Wear > 6/17/06; 6:44:36 AM For those who are wishing and hoping... Here is the administration's response to the study that demonstrates that worker benefits under SB 899 have been severely cut: "Administration officials, however, said the study is premature and potentially flawed, in part because it based its findings on a relatively small number of claims. They said the centerpiece of the new system is a requirement that doctors use a more restrictive method for evaluating injuries and benefit payments and that it's too soon to tell if the system needs refining. "The old system was based on subjective factors and was fundamentally flawed," Susan Gard, spokeswoman for the state Division of Workers' Compensation, said Friday. "The question of whether the benefit levels now are adequate or not -- that's something that the governor and the Legislature need to answer." " Here is the link to the entire articl (archived)e. Will injured workers get relief? The State of California Commission on Health and Safety and Workers' Compensation has released a report recommending that the permanent disability schedule proposed by Andrea Hoch, the governor's Administrative Director, and adopted on 1/1/05 has cut benefits to truly injured workers by as much as 50%. Democratic politicians spoke recently to the California Applicant's Attorney Association and promised that the cuts will be addressed in this legislative session. However, leaders of the business community vow to keep the cuts in place. The result? Windfall profits to the insurance carriers. A widely circulated pie chart shows that of the approximately $24 billion spent on workers' compensation last year, $9 billion was insurer profits and over $7 billion covered insurer's costs and administration. That leaves only approximately $8 billion to fund workers' benefits. Is this right? You tell me... > posted by Charles Wear > 2/10/06; 8:57:26 PM Finally, a break for injured workers A recent Court of Appeals decision has clarified the formula that should be used in determining permanent disability awards after apportionment to a prior award. In Gallo v. Dykes, the Court has determined that the famed "formula C" in the Fuentes case should be applied. In that formula, the dollar amount of the total permanent partial disability is determined and then the prior dollar amount of the award is subtracted. This decision overturns the Nabors decision by the WCAB which applied Fuentes "formula A" which subtracts the percentage of the prior award and then determines the dollar amount of the remaining percentage. In the Gallo case the difference in final PD was around $50,000. Workcompcentral.com (archived) has an excellent article on the subject. > posted by Charles Wear > 12/21/05; 6:41:31 AM Site of litigation has moved I was talking with a defense attorney yesterday and commiserating about the increase of doctor depositions. The new statutes intended to reduce dueling doctors by the use of agreed medical examiners and panel qualified medical examiners. The purpose was to reduce litigation costs. And in the long run this may be the result. In the short run there seems to be an increased need to depose the AME or QME to clarify the med-legal report. These depositions require travel, attorney time, doctor fees (usually about $500 per hour), and court reporter fees, clearly an added cost in the process. Eventually it may not be necessary to do as many of these depositions, but that is not the case yet. > posted by Charles Wear > 12/20/05; 9:04:23 AM Utilization Review denies treatment The workers' compensation reforms of late 2003 did two things that have seriously impacted the benefits of injured workers, the reforms eliminated vocational rehabiliation and instituted utilization review. Utilization review is being used by carriers to deny treatment. One claims adjuster recently posted in a workcompcentral forum (archived): "As an adjuster, unless there
are no objective findings for the procedure and or it seems
unreasonable to me, the majority of times I refer something to a UR
doctor, is when I want to deny something. Even if major surgery is
indicated, I always generally refer but more to cover my rearend." Fighting for medical treatment is one of the least satisfying and most difficult aspects of representing injured workers. > posted by Charles Wear > 12/19/05; 6:17:08 AM The outlook for 2006 Conventional wisdom among applicant and defense attorneys acknowledges that the 05 Permanent Disability Schedule has gone too far. After numerous seminars it is now clear that the AMA guidelines are not internally consistent. For example upper extremity injuries are weighted more heavily when compared with spine injuries. In addition, the competence of physicians in utilizing the guidelines is also inconstent. The one thing that is certain is that permanent disability awards under the 05 schedule will be significantly lower in most cases, from 30-70% lower. This means that undercompensated injured workers will receive even less compensation from their permanent disability awards. I predict that this will mean further consolidation in the applicant attorney's bar and fewer cases being assigned to defense attorneys for litigation. Rumors abound that the inequities of the 05 schedule will be addressed in the coming legislative session. The current political weakness of the Governator is cited. The desire of Democratic politicians to address these issues is mentioned. Only time will tell if there will be any actual changes that rectify this situation. In the meantime, from the viewpoint of any applicant attorney, we are left with a situation where we must work twice as hard to obtain half as many benefits. > posted by Charles Wear > 12/18/05; 8:47:25 AM Governor's loss, what does it mean? The Governor lost. Now what? Does that mean that the legislature can clean up the mess made by SB 899? Not likely, I think. The democratic legislature has shown a complete lack of political will concerning the plight of injured workers harmed by the 04 reform. They seem unconcerned that benefits have been drastically cut. Does the governor's apparent weakness mean that they will take action? We will wait and see... > posted by Charles Wear > 11/10/05; 6:29:54 AM Reforms gaining momentum? Yes, for sure the reforms are kicking in and injured workers are getting screwed. Recent studies released by rating experts indicate that the average reduction in percentage disability ranges from 40-74%. When translated into awards for injured workers that can amount to 50% or higher reductions in monetary awards. None of the proponents of the reform were arguing that truly injured workers were being overcompensated with permanent disability indemnity. The reforms are benefitting the insurance carriers on the "backs" of the injured workers. Shame on our Governor. Shame on the Legislature. Shame on the Administrative Director. > posted by Charles Wear > 8/26/05; 3:22:29 PM Injured worker horror stories... Voters Injured at Work (archived) is posting 19 days of permanent disability horror stories. The first installment: "About Me: My name is Sandra Howell. I’m 46, married and I live in Beaumont, near Ontario. My Family: I have raised three children: a son, 25; and two daughters, ages 19 and 21. My Job and What Happened: On May 31, 2001, I was working as an Assistant Manager for Corning-Revere’s World Kitchen store in Cabazon. While setting up a floor display, I ruptured 3 disks in my back when I twisted and grabbed a falling 4’ x 4’ metal display shelf. I woke up that night inhorrible pain, and couldn’t get out of bed. An MRI revealed 3 bulging disks, which a diskogram showed were also leaking. I had surgery and have continuing pain and nerve damage. I have been rated totally disabled (100%). What this has meant to my life: Before my work injury I enjoyed an active life. Now, I have 2 rods and 6 screws in my back and I can’t even baby-sit my granddaughter. I use a cane, and often need a wheelchair. I’d like to go back to work, but I am unable. My husband and I had plans to travel the world. But I haven’t even driven a car in 3 years, and have trouble getting out of bed in the winter. How Workers’ Comp was supposed to help me: Permanent disability compensation was supposed to replace my lost future earnings due to my injury’s long-term effects. It is also my ONLY compensation for my inability to do many everyday things, engage in recreation, and take part in and enjoy family and social outings. But my compensation under Governor Schwarzenegger’s rating schedule is cut by more than 90 percent!" There is a pdf file for download on the web site... > posted by Charles Wear > 8/20/05; 5:55:46 AM Okay, it's official, premiums are down... It must be official, the LA Times is reporting that "employers are reaping the benefits" (archived) of the workers' compensation reforms. The main benefit is reduced premiums and several small business owners are quoted, one with a 45% drop in premiums. Barely mentioned are the delays in treatment and benefits to injured workers. Hardly discussed is the dramatic increase in insurance carrier profits. But the legend continues, there was a crisis, and the Governator has fixed it... > posted by Charles Wear > 8/9/05; 5:31:35 AM (archived) Upper extremities rate higher than backs... Under the AMA guides, the maximum impairment rating for a failed surgical back is 28% standard. For nerve damaged upper extremities, post-surgical, the rating can be as high as 60%. An expert familiar with the AMA guides was asked what the logic was behind this disparity. Her answer, the orthopedic surgeons preparing the spine chapters were more conservative than those preparing the upper extremity chapters. So much for objectivity and uniformity. > posted by Charles Wear > 8/7/05; 8:06:37 PM Administrative Director goes beyond the law... Andrea Hoch is not burdened by the niceties of the Labor Code or statutory interpretation. In providing the regulatory scheme she has demonstrated that if the facts don't fit her interpretation of the law, she will go ahead and just make something up. A case in point, the future earnings modifier of the new permanent disability rating schedule. No Rand report giving empirical support, just make something up. Her latest effort is contained in "Answers to workers' compensation practitioners' questions about applying the permanent disability rating schedule (PDRS)." In several instances her interpretation goes beyond the plain language of the statute in its interpretation. Now, this would be fine if she was just another member of the defense bar, or the insurance adjuster community. However, people listen to this advice and follow it. This includes the disability evaluators that work for Ms. Hoch. These continued misinterpretations of the law will keep creating chaos in a system that is already burdened by navigating the changes implemented by recent reforms. Maybe it would be better if Ms. Hoch would keep her "answers" to her self.
> posted by Charles Wear > 8/4/05; 4:22:23 AM
Of course, here's the problem: the mistake cannot be corrected. There is no political will to do so. There are lawsuits pending to declare the new permanent disability schedule "illegal." Are these the only hope for injured workers? That appears to be the situation.
> posted by Charles Wear > 6/26/05; 6:46:13 AM
|