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
No political will to change SB 899 in any way...
There is no political will to alter the SB 899 reform
legislation in any way by any of the stakeholders, the legislators, the
governor, or in the appeals courts. This is the story that drives this
lack of political will: 1) Workers' Compensation Insurance premiums were
way too high, driving good employers out of the State [medical costs were out of control]; 2) The law was
unfair, rewarding uninjured people with huge awards obtained by
unscrupulous attorneys and approved by equally unscrupulous judges; 3)
Honest insurance carriers could no longer compete and were driven
into bankruptcy by the rampant fraud; and 4) If something was not done
about this state of affairs, then politicians would be VOTED OUT OF
OFFICE. As far as the legislature is concerned there was a huge
increase in benefit rates in 2003. The fact that awards have now been
cut from 50-70% is not yet accepted as a fact. Old cases may keep applicant attorneys going for a while until the defense bar and carriers, emboldened by the
actions of the administrative director, refuse to settle any more cases
under the old schedule. This will grind cash flow to a halt. And if the
carriers are successful in making this tactic stick, they will receive the
largest windfall in insurance history. The pre-1/1/05 cases were
reserved under the old schedule. If they settle under the new schedule
the profits will be astronomical.
> posted by Charles Wear > 7/16/05; 6:01:59 AM
Supreme Court dashes hope for early relief
Lawyers for injured workers and injured workers are bound to be
disappointed by the California Supreme Court's rejection of their
lawsuit against the new permanent disability schedule. At the crux of
the suit was the argument that Administrative Director, Andrea Hoch,
exceeded her statutory powers and did not follow the law as it was
clearly deliniated in SB 899. VotersInjuredAtWork and the California Applicant's Attorney Association
had hoped that the Supreme Court lawsuit would shortcut the litigation
process that must be followed to overturn the schedule. Essentially
that process will require a trial at the district office level, an
appeal to the Workers' Compensation Appeals Board, then an appeal to
the Court of Appeals. This is a process that, if it started today, would
probably take at least 18 months.
> posted by Charles Wear > 7/15/05; 5:58:28 AM
Rate regulation bill dead...
The assembly insurance committee voted 4-0 to table Alarcon's rate
regulation bill. Another example of the complete lack of political will
to do anything to correct problems associated with workers'
compensation reform legislation. In this case, insurance carriers are
reaping profits by collecting premiums that far exceed the benefits
provided. The employers have yet to see much relief for all of the cuts
while injured workers continue to feel the pain.
> posted by Charles Wear > 6/30/05; 5:58:10 AM
For wishful thinkers appeals court decisions are painful
Wishful thinkers are relying on the good graces of the courts of appeal
and the supreme court to overturn the draconian effects of SB 899. In
particular, the new rules on apportionment and the new permanent
disability schedule. They took heart in the WCAB decision in Scheftner
which said that SB 899 did not apply to cases in which discovery was
closed pending trial. In the recent decision, Marsh v. WCAB, the Fifth
Disctrict Court of Appeals puts another nail in the lid of the coffin
burying pre-existing benefits for injured workers. In Marsh, the
injured worker's case had been tried and a decision issued. The
employer's petition for reconsideration opened the case to SB 899 and
the new apportionment rules. The clear ruling of Marsh says that SB 899
apportionment applies to all cases that have not had their writ of
review denied by the Court of Appeals. The effect of this decision will
be to grind all pre-SB 899 cases to a halt pending further medical
reports. It also confirms the facts of the situation for the wishful
thinkers. SB 899 represents, depending on your perspective, a political
solution to cut workers compensation benefits in every area, medical
treatment, temporary and permanent disability benefits, and by
any means. The Court of Appeals has recognized this legislative intent
and has determined to carry it out. Those practioners hoping that the
courts will overturn the new permanent disability schedule had better
hold off on making down payments on new California real estate. Their
cash flow is definitely going to suffer along with the injured workers.
> posted by Charles Wear > 6/29/05; 6:05:06 AM
Applicant's attorneys hear legislator's "mea culpa"
Friday at the California Applicant's Attorney Association summer convention, the "congregation" heard several democratic legislators utter their apologies for their votes on SB 899. "It was a mistake" said Assembly Speaker Pro Tem, Dr. Leland Yee of San Francisco.
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
Premiums dropping...
Zenith, State Fund, Employers Direct and Republic are just a few of the
carriers who have made double digit cuts in their premiums for workers'
compensation. Here's a question, however. Where are the savings coming
from? Are they coming from denied or delayed medical treatment? Savings
from retroactive application of apportionment to pre-existing
pathology? The cuts in the new permanent disability rating schedule?
Here's the second question. Are the premium savings benefitting the
employers who pay the premiums, or are experience ratings and
reclassifications keeping the premium dollar fairly constant?
> posted by Charles Wear > 6/13/05; 7:10:38 AM
The definition of is...
Here's a link to my recent article It Depends on What the Definition of Is, Is. It was published on WorkCompCentral.
> posted by Charles Wear > 6/8/05; 4:44:23 AM (link unavailable)
Bulworth Beatty taking on Schwarzenegger?
Has Clyde stepped up to gun down the terminator? Or is he merely going
to do his hair? That's the question after Warren Beatty spends his
weekend commencement address taking on the governor's "musclebound
conservatism." Is is Warren for governor? He fits the profile: Rich, a
celebrity, willing to stand up to the governor. the LA Times report
says (link unavailable): 'Still, as it's been for decades, whenever Beatty talks, the
media
wonder if he's planning to run for public office. During his speech,
Beatty said that Schwarzenegger "knows I'm a private citizen just as he
was a year ago, I'm an opponent of his muscle-bound conservatism with a
longer experience in politics than he has and, although I don't want to
run for governor, I'd do one helluva lot better job than he's done." A
couple of days later, Beatty demurs and seems keen on simply being a
"truth teller," although he does say, "One never knows at what point
one becomes sufficiently inflamed to take a step that one does not
basically want to take."' Maybe there is hope for California's little
guy, like the injured worker. Maybe CAAA should approach Beatty about
being a spokesman for a series of injured worker ads designed to raise
public awareness about the plight of those who have harmed by SB 899?
> posted by Charles Wear > 5/25/05; 5:42:53 AM
Governor Arnold makes mess with WC reform
Here's a terrific quote from Larry White's recent SF Chronicle article (archived): Crafted in secrecy and layered with ambiguity, SB899 has led to major
litigation, slowdowns in an already broken delivery system and bitter acrimony
between organized labor and business groups. The 2003 reforms solved the major
workers' compensation problems. Schwarzenegger's measure created a whole new
set of them. That's Schwarzenegger's workers' comp accomplishment -- snatching
legislative failure from the jaws of solid accomplishment."
> posted by Charles Wear > 5/24/05; 5:53:21 AM
Study shows what we all know...
The LA Times' Mark Lifsher reports
on the Brigham study which shows that permanent disability awards will
be cut more than 50% under the new permanent disability rating
schedule. "[Brigham's findings] give new ammunition to Senate Democrats
who want to reopen the debate
over the best way to fix the $22-billion-a-year system. Last year's
overhaul was largely orchestrated by Republican Gov. Arnold
Schwarzenegger, who vowed that workers would not be harmed by efforts
to rein in premiums."
Please. Deliver us from Democrats who want to fix the system. Their
most recent fixes include: Utilization Review, Elimination of
Vocational Rehabilitation, Employer control of medical treatment,
Apportionment to Causation, and a new Permanent Disability Rating
Schedule that cuts benefits by over 50%. If the Democrats help the
injured worker anymore, there won't be a system left.
> posted by Charles Wear > 5/20/05; 11:07:31 PM
Garamendi says premium reductions not fast enough...
A recent report in the Sacramento Bee states (link unavailable): "Not too many small businesses have received reductions," Garamendi
told a packed hearing room Thursday at the Insurance Department's
offices on Fremont Street. "The insurance industry wants to fatten its
profit margin. We are in the process of careful monitoring where the
insurance companies are going with their premiums and their costs." So what else is new?
> posted by Charles Wear > 5/20/05; 2:14:18 PM
The difference in the rating schedules
Just received a defense doctor's report which rated approximately 9%
under the new schedule and 16% under the old schedule. This may not
seem like much difference, after all it is only 7 percentage points.
But it is nearly 50% less in the raw rating . The dollar value is $7200
for the 9% and $14,050 for the 16%. Now this is a 2004 injury that
should be under the old schedule, however the defense attorney is
pushing to settle the case under the new schedule. Of course, it is
easy to see why, the insurance carrier will save about $7,000, and this
is the DEFENSE report. By the
way, the carrier originally denied the case, did not pay benefits for
nearly 6 months until the defense doctor said the injury was industrial
and that the applicant was entitled to benefits. Does this seem right?
> posted by Charles Wear > 5/17/05; 9:55:18 PM
Sick of warning labels...
Does anyone think that having an FBI warning on DVDs stops pirates from
ripping off DVDs and people from buying the "stolen" material? Doesn't
this seem like a huge waste of time and energy? And what about the
workers' compensation fraud warnings? "Making a false claim for
worker's compensation, etc., etc." Does this cut down on fraud? Does
anything cut down on fraud? This is one of those stupid rules that
should be changed...immediately.
> posted by Charles Wear > 5/8/05; 9:21:12 AM
Labor group sues over new permanent disability schedule
The California Labor Federation has brought suit to overturn the new
permanent disability schedule put forth by Administrative Director,
Andrea Hoch. The suit claims that Hoch ignored the law when she did not
utilize empirical data prepared by a Southern California think tank.
The data was supposed to compensate injured workers for the loss of
earnings capacity caused by their injury. Read the entire article here >>> (link unavailable).
> posted by Charles Wear > 5/5/05; 9:13:58 PM
California making economic comeback? That's what Arnold says...
In a recent radio address the Governor claimed that job figures show
that California is making an economic comeback. He credits the workers'
compensation reforms for reducing the cost of doing business in
California. Only one problem, the premium reductions have not yet hit
the employer's pocketbooks...You can read the Governor's propaganda here >>> (link unavailable).
> posted by Charles Wear > 5/2/05; 6:36:57 PM
And so the AD is confirmed....
Andrea Hoch is approved by the State Senate as the Administrative
Director of the Division of Workers' Compensation. This is the person
who has instituted the draconian permanent disability schedule which
fabricates out of thin air the "loss of future earnings" for injured
workers as a factor of disability. The result: 50-70% cuts in permanent
diability awards. Injured workers are being shafted on the political
and legislative front. The rulings being handed down by the Workers'
Compensation Appeals Board are not favorable. This leaves the Court of
Appeals and the Supreme Court to restore some sanity to an
unconscionable situation. Will relief come in time?
> posted by Charles Wear > 4/29/05; 6:12:37 AM
Hoch voted out of committee
The embattled administrative director of the California Division of
Workers' Compensation, Andrea Hoch, was approved by the Senate Rules
Committee and will go before the entire State Senate for a vote. Ms.
Hoch has been serving as the acting director and unless ratified, here
1 year term will expire on May 3. There are rumors of a back-room deal
between the Governor and committee chairman, State Sen. Don Perata. Read the entire article here >>> (archived).
> posted by Charles Wear > 4/28/05; 6:00:28 AM
Defense attorney denounces PD schedule
Clifford D. Sweet III, former president of a defense attorneys groups,
calls the new permanent disability schedule "socially unacceptable." He
calls for the legislature to move quickly to fix the problem. Read the entire article here >>> (archived).
> posted by Charles Wear > 4/28/05; 5:53:33 AM
Schwarzenegger in retreat?
This USA Today article claims that the Governor is in retreat (archived).
Now if the Democrats in the legislature could just get the guts to
stand up to him and make the necessary changes to restore balance to
the workers comp system, all would be right in the cosmos! One wonders
if this article is just wishful thinking, or if the Governor has
decided that he put a little too much bratwurst on his plate with his
massive reform agenda? The only way to truly find out would be to
tinker with SB 899, don't you think?
> posted by Charles Wear > 4/27/05; 5:32:49 AM
Insurance commissioner states the obvious
Garamendi has stated the obvious, costs have fallen in the light of
workers' compensation reforms, but premiums have stayed high while
insurers reap windfall profits. Read the entire LA Times article here >>> (link unavailable).
Regulations have cut permanent disability benefits in half, a crisis is
looming in the future for those injured after January 1, 2005.
> posted by Charles Wear > 4/26/05; 5:48:53 AM
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