Not a lot of exciting workers' compensation law or issues come out of Wyoming - one of the least densely populated states in the US.
But one case that came out of that state's Supreme Court highlights the difficult interaction of psychology/psychiatry and disability.
The real issue is who pays for it, and in this case the court said that the cost burden is on the work comp system.
In McMasters v. Wyoming, No. S-11-0107, 03/02/2012, Jimmie McMasters was working in 2003 as a heating, ventilation and air conditioning journeyman when he fell 9 feet from a beam to a concrete floor and suffered a compression fracture to his L1 vertebrae.
After five years of treatment and evaluation by numerous medical providers and specialists, McMasters applied for permanent total disability benefits claiming a total disability under the "odd lot" doctrine.
The "odd lot" doctrine, as recognized in Wyoming, provided that permanent total disability benefits may be awarded to workers who were "not altogether incapacitated for work" but were "so handicapped that they will not be employed regularly at any well-known branch of the labor market."
The doctors who treated McMasters diagnosed him as suffering from Agoraphobia, Panic Disorder, Pain Disorder and Major Depressive Disorder, which prevented him from accepting work which could accommodate his physical restrictions.
The Wyoming Workers' Safety and Compensation Division denied McMasters' application. Although the division determined that McMasters could not return to work as an HVAC journeyman, it concluded his failure to obtain alternative employment was due to a pre-existing psychological condition and a poor effort to find work. The Medical Commission agreed and upheld the denial of benefits.
Up the judicial ladder the case went and the Wyoming Supreme Court said that "(f)our separate professionals evaluated McMasters and concluded that the combination of his physical restrictions, pain and psychological condition has rendered him unemployable," and given this evidence, concluded "there can be no question that McMasters met his burden of showing that the degree of his physical impairment combined with his mental capacity, education, training, and age make him eligible for permanent total disability benefits."
While a worker must make a showing that he was unemployable in order to state a valid claim under the odd lot doctrine, the court explained he "is not required to show that he searched for work and could find none to prove he is permanently and totally disabled…"
Even if McMasters' psychological problems predated his work injury, the court added, "(t)he record (was) clear that it (was) the combination of the two conditions that has permanently and totally disabled McMasters."
Compare this case with one I recently highlighted in California where the 4th District Court of Appeals ruled that physical disability arising out of a mental disorder was not compensable - albeit in response to a California specific statute (Labor Code 3208.3) that imposed certain restrictions on mental injury claims.
The interesting aspect of the two cases is that there is judicial recognition that physical disability can have its origin in mental health.
This is important to a broader understanding of the interrelatedness of disability and mental health. There is a growing school of thought that in order to properly manage the disability you must first properly manage the psychology.
In a system like workers' compensation, however, properly managing the psychology means getting into an argument about responsibility (read liability) for what is likely a pre-existing, underlying condition.
At the end of the day, someone pays for it. The cost may not be borne by the employer directly, but certainly the cost is borne by society, which means that the cost is spread to all of us.
Tuesday, March 6, 2012
Monday, March 5, 2012
ID NIED Case a Dull Two Edged Sword
Idaho's strict definition of injury for purposes of workers' compensation liability is a two edged sword.
Fortunately the employer in Bollinger v. Fall River Rural Electric Cooperative, Docket No. 38248, 2012 Opinion No. 36. Supreme Court of Idaho, filed March 1, 2012, found that the sword was dull on both sides.
Suzette Bollinger sued Fall River for breach of contract, retaliatory discharge, wrongful termination, and negligent infliction of emotional distress. Bollinger had started out at Fall River in 1988 as a cashier and receptionist, but was promoted into a number of better jobs over the years. In 2009, the employer terminated her without cause from her position as Safety & Loss/Facility Director.
Dating back to 2004, the employer had adopted several policies that its employees were "at-will employees" who could be terminated without cause. The most recent policy was called an "Employment-At-Will" policy, and was adopted in 2009 (before Bollinger's termination).
A trial court granted Fall River's motion for summary judgment, after concluding that Bollinger was an at-will employee.
The Idaho Supreme Court affirmed. In the high court's analysis of the claim for negligent infliction of emotional distress (NIED), the high court determined that the exclusive remedy of workers' compensation did NOT bar this claim.
"As an initial matter, the district court was correct that Bollinger's NIED claim is not preempted by the workers' compensation law," the court wrote. "The type of injury covered under workers' compensation is that 'caused by an accident, which results in violence to the physical structure of the body.' An accident is an 'unexpected, undesigned, and unlooked for mishap, or untoward event.' The injury Bollinger claims was not caused by violence to the body but rather emotional distress unrelated to any physical injury. As such, it is not the type of injury contemplated by the workers' compensation law. Further, although Bollinger seeks recovery under a negligence cause of action, her alleged injury was not caused by the type of 'accident' contemplated by Idaho Code. The conduct of Fall River — its discharge of Bollinger — was planned. As such, Bollinger's NIED claim is not preempted by the workers' compensation law."
However, the high court explained that Bollinger's failure to pinpoint a legal duty that was breached by her termination ultimately barred her NIED claim.
So while Bollinger was unsuccessful in prosecuting her NIED claim because there was no duty owed her by the employer in this situation - i.e. she was "at-will" and employer's will was not to employ her - the court is also saying that IF there was a duty such an injury would be outside of the exclusive remedy of work comp.
At some point in Idaho's legal future a case is going to come up where the employer finds that dull sword has been sharpened, and is going to wish that an NIED claim WAS covered by work comp.
*************
Fortunately the employer in Bollinger v. Fall River Rural Electric Cooperative, Docket No. 38248, 2012 Opinion No. 36. Supreme Court of Idaho, filed March 1, 2012, found that the sword was dull on both sides.
Suzette Bollinger sued Fall River for breach of contract, retaliatory discharge, wrongful termination, and negligent infliction of emotional distress. Bollinger had started out at Fall River in 1988 as a cashier and receptionist, but was promoted into a number of better jobs over the years. In 2009, the employer terminated her without cause from her position as Safety & Loss/Facility Director.
Dating back to 2004, the employer had adopted several policies that its employees were "at-will employees" who could be terminated without cause. The most recent policy was called an "Employment-At-Will" policy, and was adopted in 2009 (before Bollinger's termination).
A trial court granted Fall River's motion for summary judgment, after concluding that Bollinger was an at-will employee.
The Idaho Supreme Court affirmed. In the high court's analysis of the claim for negligent infliction of emotional distress (NIED), the high court determined that the exclusive remedy of workers' compensation did NOT bar this claim.
"As an initial matter, the district court was correct that Bollinger's NIED claim is not preempted by the workers' compensation law," the court wrote. "The type of injury covered under workers' compensation is that 'caused by an accident, which results in violence to the physical structure of the body.' An accident is an 'unexpected, undesigned, and unlooked for mishap, or untoward event.' The injury Bollinger claims was not caused by violence to the body but rather emotional distress unrelated to any physical injury. As such, it is not the type of injury contemplated by the workers' compensation law. Further, although Bollinger seeks recovery under a negligence cause of action, her alleged injury was not caused by the type of 'accident' contemplated by Idaho Code. The conduct of Fall River — its discharge of Bollinger — was planned. As such, Bollinger's NIED claim is not preempted by the workers' compensation law."
However, the high court explained that Bollinger's failure to pinpoint a legal duty that was breached by her termination ultimately barred her NIED claim.
So while Bollinger was unsuccessful in prosecuting her NIED claim because there was no duty owed her by the employer in this situation - i.e. she was "at-will" and employer's will was not to employ her - the court is also saying that IF there was a duty such an injury would be outside of the exclusive remedy of work comp.
At some point in Idaho's legal future a case is going to come up where the employer finds that dull sword has been sharpened, and is going to wish that an NIED claim WAS covered by work comp.
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VACATION NOTICE: I'm off to Hawaii. It's supposed to be for vacation. We'll see how well I do. But in case this vacation thing actually works this week's postings may be spotty. As in the Idaho situation above, time will tell.
Friday, March 2, 2012
CA 4th DCA Opens Pandora's Box for Denying Pain Cases
Wow, wow, wow.
That's all I could say to the recently released opinion by the California 4th District Court of Appeal (DCA) ruling in County of San Bernardino v. WCAB (McCoy), No. E053173, 2/29/12, published.
In this case the appellate court ruled that the claimant's allegation of migraine headaches were barred from compensability under Labor Code section 3208.3.
Section 3208.3 is the "psyche" statute and, among other limitations, permits a defense against workers' compensation claims for psychiatric injuries if the employer can show such injuries arise out of "lawful, nondiscriminatory, good faith personnel actions".
In the 4th DCA case, John McCoy, an automated systems technician for the County of San Bernardino, filed a workers' compensation claim alleging a cumulative trauma injury to his psyche from July 2005 through January 2006. He added a claim of injury for migraine headaches on the first day of trial.
The County denied the claim under 3208.3 stating that McCoy's injuries were the result of lawful, nondiscriminatory, good faith personnel actions.
The trial judge agreed and denied compensability, including for the migraine claim.
On reconsideration the Workers' Compensation Appeals Board (WCAB) reversed and said that the migraines were not the subject of 3208.3.
On appeal the 4th DCA sided with the County, ruling essentially that physical symptoms that are the product of psychological injury are not compensable if they are the product of lawful, nondiscriminatory, good faith personnel actions.
"We do not believe that the matter can be resolved so simply; seldom are the effects of stress limited to injury to the psyche without resulting physical problems," Justice Art McKinster wrote. "This is such a case. No evidence was presented that McCoy suffered any on-the-job stress other than that resulting from what has been determined to be good faith personnel actions. In such a circumstance, we must conclude that Section 3208.3(h), precludes recovery for physical manifestations that are directly and solely resulting from the psychological injury suffered as a result of good faith personnel actions."
The court explained that this was the only conclusion it could reach, without undermining the purpose of LC 3208.3.
"It would be relatively easy for a claimant to avoid this bar by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se," McKinster wrote. "There is no better example of this than the present case where McCoy added the claim for migraine headaches — a pre-existing condition— on the first day of trial. We conclude that the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions."
Me thinks this case is going up to the Supreme Court because the implications are enormous for a whole host of cases indicating physical symptoms that have their origination in psychological or psychiatric causation.
The reason is that another feature of LC 3208.3 is that, to be compensable, "an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." So beyond the lawful, nondiscriminatory, good faith personnel action defense, the courts language seems broad enough to encompass the causation threshold of 3208.3 and wrap into that any physiological response to psychological or psychiatric based injury or disease that may be precipitated or caused by employment stimuli.
That's all I could say to the recently released opinion by the California 4th District Court of Appeal (DCA) ruling in County of San Bernardino v. WCAB (McCoy), No. E053173, 2/29/12, published.
In this case the appellate court ruled that the claimant's allegation of migraine headaches were barred from compensability under Labor Code section 3208.3.
Section 3208.3 is the "psyche" statute and, among other limitations, permits a defense against workers' compensation claims for psychiatric injuries if the employer can show such injuries arise out of "lawful, nondiscriminatory, good faith personnel actions".
In the 4th DCA case, John McCoy, an automated systems technician for the County of San Bernardino, filed a workers' compensation claim alleging a cumulative trauma injury to his psyche from July 2005 through January 2006. He added a claim of injury for migraine headaches on the first day of trial.
The County denied the claim under 3208.3 stating that McCoy's injuries were the result of lawful, nondiscriminatory, good faith personnel actions.
The trial judge agreed and denied compensability, including for the migraine claim.
On reconsideration the Workers' Compensation Appeals Board (WCAB) reversed and said that the migraines were not the subject of 3208.3.
On appeal the 4th DCA sided with the County, ruling essentially that physical symptoms that are the product of psychological injury are not compensable if they are the product of lawful, nondiscriminatory, good faith personnel actions.
"We do not believe that the matter can be resolved so simply; seldom are the effects of stress limited to injury to the psyche without resulting physical problems," Justice Art McKinster wrote. "This is such a case. No evidence was presented that McCoy suffered any on-the-job stress other than that resulting from what has been determined to be good faith personnel actions. In such a circumstance, we must conclude that Section 3208.3(h), precludes recovery for physical manifestations that are directly and solely resulting from the psychological injury suffered as a result of good faith personnel actions."
The court explained that this was the only conclusion it could reach, without undermining the purpose of LC 3208.3.
"It would be relatively easy for a claimant to avoid this bar by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se," McKinster wrote. "There is no better example of this than the present case where McCoy added the claim for migraine headaches — a pre-existing condition— on the first day of trial. We conclude that the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions."
Me thinks this case is going up to the Supreme Court because the implications are enormous for a whole host of cases indicating physical symptoms that have their origination in psychological or psychiatric causation.
The reason is that another feature of LC 3208.3 is that, to be compensable, "an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." So beyond the lawful, nondiscriminatory, good faith personnel action defense, the courts language seems broad enough to encompass the causation threshold of 3208.3 and wrap into that any physiological response to psychological or psychiatric based injury or disease that may be precipitated or caused by employment stimuli.
When one looks at the DSM-IV, or Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (American Psychiatric Association), mandated in 3208.3, one can see where there is great potential for the use of 3208.3 to deny otherwise purely physical injury claims.
The biggest single catch-all for such issues is in the DSM-IV diagnosis category of Somatoform Disorders.
The chapter on Somatoform Disorders starts on page 445 of DSM-IV.
"The common feature of the Somatoform Disorders is the presence of physical symptoms that suggest a general medical condition (hence the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder."
One of the subsets of Somatoform Disorders is Pain Disorder (page 458).
"The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... "
This is very significant. The current majority medical opinion on, for instance, fibromyalgia, is that it is a Pain Disorder because there are no biological explanations for the patient's generalized pain symptoms.
How many work comp cases allege fibromyalgia, or some other pain that is not reasonably explained by physical findings? I believe there is actually quite a large population of those cases in the system.
In fact, the garden variety regional back pain case, so often accepted as compensable simply because of the allegation of pain in a physical body part, may fall into this category (see for example the extensive work and writings of Dr. Nortin Hadler).
So, if the 4th DCA's opinion is to be extrapolated to the general every day garden variety back pain case, or fibromyalgia case, the employer/carrier may ask for a psyche opinion - particularly if there are no diagnostic criteria that are unique from the normal population set to account for complaints of pain - and if the consult diagnoses a Pain Disorder, the employer/carrier may indeed find defense in 3208.3 against compensability.
I'm not saying this is right or wrong, or that payers are going to all jump on the band wagon and deny regional back pain cases as non-compensable under 3208.3, but it is certainly a possibility that many cases may be challenged in the future based on a psyche defense.
From a medical-legal operational standpoint, the examining physician will need to jump the gulf between physical and psychological, but that simply requires a consult referral from a mental health expert.
I suspect that talented defense attorneys will use this strategy on challenging cases until there is either a change in the statute, or a different ruling from a higher court.
The biggest single catch-all for such issues is in the DSM-IV diagnosis category of Somatoform Disorders.
The chapter on Somatoform Disorders starts on page 445 of DSM-IV.
"The common feature of the Somatoform Disorders is the presence of physical symptoms that suggest a general medical condition (hence the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder."
One of the subsets of Somatoform Disorders is Pain Disorder (page 458).
"The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... "
This is very significant. The current majority medical opinion on, for instance, fibromyalgia, is that it is a Pain Disorder because there are no biological explanations for the patient's generalized pain symptoms.
How many work comp cases allege fibromyalgia, or some other pain that is not reasonably explained by physical findings? I believe there is actually quite a large population of those cases in the system.
In fact, the garden variety regional back pain case, so often accepted as compensable simply because of the allegation of pain in a physical body part, may fall into this category (see for example the extensive work and writings of Dr. Nortin Hadler).
So, if the 4th DCA's opinion is to be extrapolated to the general every day garden variety back pain case, or fibromyalgia case, the employer/carrier may ask for a psyche opinion - particularly if there are no diagnostic criteria that are unique from the normal population set to account for complaints of pain - and if the consult diagnoses a Pain Disorder, the employer/carrier may indeed find defense in 3208.3 against compensability.
I'm not saying this is right or wrong, or that payers are going to all jump on the band wagon and deny regional back pain cases as non-compensable under 3208.3, but it is certainly a possibility that many cases may be challenged in the future based on a psyche defense.
From a medical-legal operational standpoint, the examining physician will need to jump the gulf between physical and psychological, but that simply requires a consult referral from a mental health expert.
I suspect that talented defense attorneys will use this strategy on challenging cases until there is either a change in the statute, or a different ruling from a higher court.
Thursday, March 1, 2012
Abandoning CA RTW Provision Should be Start of "Reform"
A California law with good intent demonstrates why legislators should not try to make social policy without fully understanding what they are doing.
I'm talking about Labor Code section 4658(d).
This is the statute that provides that an employer who offers an injured employee "regular work, modified work, or alternative work," within 60 days of his disability becoming permanent and stationary shall be entitled to decrease each remaining disability payment to the worker from the date of the offer by 15%. The statute also requires employers to increase the benefit by 15% if the worker is not returned to his job.
This law was one of the king pin Schwarzenegger "reform" moves. The former governor's administration wanted to provide employers an incentive for taking back injured workers as soon as possible and return them to productive status.
The idea is a good one - of course we all want injured workers to get back on the job as soon as possible. That's good for the business, good for the worker, good for California.
One of the problems with this law, though, is that it is one sided. There is reward for the employer to make an offer of work. There is no reward for the injured worker to return to work. There is only a penalty if an offer of work is made and the injured worker does not accept that offer.
Another problem with this statute is, for the most part, employers a) don't really understand or know of this provision, b) don't care, c) don't have the resources to avail themselves of this reward. This is a provision that really only works for large employers with diverse jobs and a human resources department for making all this happen (the statute specifically applies only to employers with 50 or more employees).
Third, this provision of the law is a huge headache to administer. Not only does it mess with the math of permanent disability benefit administration (think of calculating the present value of a lump sum distribution of this benefit in a life pension case - makes my spreadsheet hurt), but the law is undecided on when it actually applies.
For instance, a recent split decision from the Workers' Compensation Appeals Board (WCAB) panel wrestles with the question as to whether LC 4658(d) applies to an injured worker who misses no time from work.
I'm talking about Labor Code section 4658(d).
This is the statute that provides that an employer who offers an injured employee "regular work, modified work, or alternative work," within 60 days of his disability becoming permanent and stationary shall be entitled to decrease each remaining disability payment to the worker from the date of the offer by 15%. The statute also requires employers to increase the benefit by 15% if the worker is not returned to his job.
This law was one of the king pin Schwarzenegger "reform" moves. The former governor's administration wanted to provide employers an incentive for taking back injured workers as soon as possible and return them to productive status.
The idea is a good one - of course we all want injured workers to get back on the job as soon as possible. That's good for the business, good for the worker, good for California.
One of the problems with this law, though, is that it is one sided. There is reward for the employer to make an offer of work. There is no reward for the injured worker to return to work. There is only a penalty if an offer of work is made and the injured worker does not accept that offer.
Another problem with this statute is, for the most part, employers a) don't really understand or know of this provision, b) don't care, c) don't have the resources to avail themselves of this reward. This is a provision that really only works for large employers with diverse jobs and a human resources department for making all this happen (the statute specifically applies only to employers with 50 or more employees).
Third, this provision of the law is a huge headache to administer. Not only does it mess with the math of permanent disability benefit administration (think of calculating the present value of a lump sum distribution of this benefit in a life pension case - makes my spreadsheet hurt), but the law is undecided on when it actually applies.
For instance, a recent split decision from the Workers' Compensation Appeals Board (WCAB) panel wrestles with the question as to whether LC 4658(d) applies to an injured worker who misses no time from work.
In Braga v. City of Sebastopol, No. ADJ7702084, 01/23/2012, Braga (who represents himself) sustained hearing loss between 2009 and 2010 as a result of his employment with the city as a fire captain. He never missed any time from work and continues to work full time as a fire captain.
The parties stipulated that Braga was at an 18% permanent disability level, but Workers' Compensation Judge George R. Ferris suspended action on the settlement, based on a 2009 WCAB panel decision in Tsuchiya v. County of Los Angeles.
The parties stipulated that Braga was at an 18% permanent disability level, but Workers' Compensation Judge George R. Ferris suspended action on the settlement, based on a 2009 WCAB panel decision in Tsuchiya v. County of Los Angeles.
In that case, a panel comprised of Commissioners Deidra Lowe, Ronnie Caplane and Alfonso Moresi concluded the "bump down" benefit provided in Section 4658(d) was inapplicable when there was no time loss due to the industrial injury.
Ultimately the judge approved the settlement, with the exception of the permanent disability indemnity amount, which the judge refused to lower to 85% of the scheduled $15,065.
The city sought review by the WCAB, which denied reconsideration.
In the Braga opinion, Caplane, joined by Commissioner Frank M. Bass, opined that "(t)he provisions of Labor Code 4658(d) are intended to give employers an incentive to return their injured employees to work," and "(in) cases such as this one, where the employee has lost no time from work and is continuing to perform his or her regular work, the provisions have no purpose."
She further reasoned that "applying Labor Code Section 4658(d) in cases where the injured worker has lost no time from work creates the potential for injured workers to receive a 15% windfall if a defendant inadvertently fails to send the correct form" and such a "game of 'gotcha' with applicants who have not lost time from work does not further the purpose of this statute."
Moresi, however, said that "a close reading of this statute has convinced me that there is no exception for continuously employed applicants."
"We must consider the language of Labor Code Section 4658(d) in light of the entire statutory scheme of which it is a part," he wrote. "Pursuant to Labor Code Section 4660(a), permanent disability includes the employee's 'diminished future earning capacity,'" he noted, reasoning that an applicant who is able to "continue in his pre-injury employment and perform full duties" has "less diminished future earning capacity than an employee who cannot," so Section 4658(d) should function to adjust an injured worker's compensation "to better reflect his or her diminished future earning capacity."
I say that we must consider abolishing this illogical statute and that doing so should be the basis of the next wave of "reform".
Indeed, if the sentiments of those interviewed for the WorkCompCentral news story on this case are representative of the majority of people, there would be no love lost should this provision be abandoned.
Attorney Bob Sherwin of Marenstein, Wicke, Sherwin & Lee, a firm that represents a lot of public safety personnel in workers' compensation cases, said he thought "everyone" on both the claimant and defense bars "would like to see the section go away" since it is "more of a pain in the rear than beneficial to either side."
And the claims adjuster for the agency administering the Braga case called the section "very frustrating" to apply.
It is a complicating factor in what should be an easy to administer benefit. The incentive value is questionable and the administrative cost is significant.
That is the definition of a law that doesn't belong in the book.
Ultimately the judge approved the settlement, with the exception of the permanent disability indemnity amount, which the judge refused to lower to 85% of the scheduled $15,065.
The city sought review by the WCAB, which denied reconsideration.
In the Braga opinion, Caplane, joined by Commissioner Frank M. Bass, opined that "(t)he provisions of Labor Code 4658(d) are intended to give employers an incentive to return their injured employees to work," and "(in) cases such as this one, where the employee has lost no time from work and is continuing to perform his or her regular work, the provisions have no purpose."
She further reasoned that "applying Labor Code Section 4658(d) in cases where the injured worker has lost no time from work creates the potential for injured workers to receive a 15% windfall if a defendant inadvertently fails to send the correct form" and such a "game of 'gotcha' with applicants who have not lost time from work does not further the purpose of this statute."
Moresi, however, said that "a close reading of this statute has convinced me that there is no exception for continuously employed applicants."
"We must consider the language of Labor Code Section 4658(d) in light of the entire statutory scheme of which it is a part," he wrote. "Pursuant to Labor Code Section 4660(a), permanent disability includes the employee's 'diminished future earning capacity,'" he noted, reasoning that an applicant who is able to "continue in his pre-injury employment and perform full duties" has "less diminished future earning capacity than an employee who cannot," so Section 4658(d) should function to adjust an injured worker's compensation "to better reflect his or her diminished future earning capacity."
I say that we must consider abolishing this illogical statute and that doing so should be the basis of the next wave of "reform".
Indeed, if the sentiments of those interviewed for the WorkCompCentral news story on this case are representative of the majority of people, there would be no love lost should this provision be abandoned.
Attorney Bob Sherwin of Marenstein, Wicke, Sherwin & Lee, a firm that represents a lot of public safety personnel in workers' compensation cases, said he thought "everyone" on both the claimant and defense bars "would like to see the section go away" since it is "more of a pain in the rear than beneficial to either side."
And the claims adjuster for the agency administering the Braga case called the section "very frustrating" to apply.
It is a complicating factor in what should be an easy to administer benefit. The incentive value is questionable and the administrative cost is significant.
That is the definition of a law that doesn't belong in the book.
Wednesday, February 29, 2012
Zurich, CDI and Arbitration Agreements - What's the Big Deal?
It's no secret that insurance companies don't really like doing business in California. The burdensome regulatory environment, liberal judges and juries, complex laws, high tax structure - each of these plays against doing business in The Golden State.
But the eighth largest economy in the world, comprising 13% of the entire country's gross domestic product, is a very tempting piece of candy, with about $7 billion in available gross written premium workers' compensation insurance market (about 20% of the entire nation's available market).
Insurance is all about risk management, which includes controlling the market insurance is being written in. If one can control who says what and where about disputes, then there is better risk management control.
It's all about how one goes about doing this though, and states have laws that require certain actions be performed in the name of risk management, in particular in a regulated market, like work comp.
One of those laws, intended to protect the less sophisticated of insurance product customers, requires that the California Department of Insurance (CDI) get a copy of all pieces of paper purporting to bind the work comp insurance customer to certain practices and requirements.
The reason CDI has regulations in place like that (one of those regulatory schemes that make California such a burden on business - by the way, I'm being sarcastic here) is because the insurance contract is a complex document filled with legal mumbo jumbo that would put to sleep even the most astute and interested student of insurance contract study.
A simple business owner isn't going to take the time to read everything, if anything at all.
And the typical business owner, even if the time is taken to read the entire insurance contract, isn't going to understand or appreciate the implications of certain clauses, like how, when and under what laws disputes are going to be resolved.
The HBO movie which I had earlier written about, Hot Coffee, highlights four elements that corporate America uses to eviscerate the Seventh Amendment to the United States Constitution - the right to have disputes heard and resolved in a civil court of law. One of those elements is the use of arbitration to remove the right of the plaintiff to have his or her day in court.
So it comes as no surprise that the CDI has brought action against Zurich American Insurance Co. and Zurich Insurance Co. of Illinois, saying they are improperly using large-deductible workers’ compensation agreements that have not been approved for use in California, and which specifically direct the use of arbitration in Illinois for policy disputes, and specifically direct the use of New York law in the resolution of those disputes even though the contract is executed in California by a California business affecting the rights and obligations of parties in California.
But the eighth largest economy in the world, comprising 13% of the entire country's gross domestic product, is a very tempting piece of candy, with about $7 billion in available gross written premium workers' compensation insurance market (about 20% of the entire nation's available market).
Insurance is all about risk management, which includes controlling the market insurance is being written in. If one can control who says what and where about disputes, then there is better risk management control.
It's all about how one goes about doing this though, and states have laws that require certain actions be performed in the name of risk management, in particular in a regulated market, like work comp.
One of those laws, intended to protect the less sophisticated of insurance product customers, requires that the California Department of Insurance (CDI) get a copy of all pieces of paper purporting to bind the work comp insurance customer to certain practices and requirements.
The reason CDI has regulations in place like that (one of those regulatory schemes that make California such a burden on business - by the way, I'm being sarcastic here) is because the insurance contract is a complex document filled with legal mumbo jumbo that would put to sleep even the most astute and interested student of insurance contract study.
A simple business owner isn't going to take the time to read everything, if anything at all.
And the typical business owner, even if the time is taken to read the entire insurance contract, isn't going to understand or appreciate the implications of certain clauses, like how, when and under what laws disputes are going to be resolved.
The HBO movie which I had earlier written about, Hot Coffee, highlights four elements that corporate America uses to eviscerate the Seventh Amendment to the United States Constitution - the right to have disputes heard and resolved in a civil court of law. One of those elements is the use of arbitration to remove the right of the plaintiff to have his or her day in court.
So it comes as no surprise that the CDI has brought action against Zurich American Insurance Co. and Zurich Insurance Co. of Illinois, saying they are improperly using large-deductible workers’ compensation agreements that have not been approved for use in California, and which specifically direct the use of arbitration in Illinois for policy disputes, and specifically direct the use of New York law in the resolution of those disputes even though the contract is executed in California by a California business affecting the rights and obligations of parties in California.
I have nothing against Illinois, or New York for that matter. I like Chicago. Great people, wonderful architecture and New York has some of the best food in the world.
But if I'm from California with a California dispute, I want my fellow Californian's interpreting California law to resolve that dispute. I don't know many people in Illinois. I don't know New York laws. And I certainly don't like that my fate would be decided by a single person with no appeal available.
Now, in Zurich's defense, at issue are contracts with large loss deductibles, which means that the businesses covered by such contracts are pretty big businesses probably with dedicated risk management departments employing dozens of legal minds. These guys knew what they were buying and liked the pricing, which Zurich could do if it kept things out of the expensive and unpredictable California litigation environment.
That would be fine - but Zurich failed to have the contracts approved by CDI. What was it hiding? Why was Zurich afraid to have those contracts reviewed by CDI?
So, bully for CDI in taking Zurich to task for, CDI alleges, trying to scam the insurance purchasing public by including contractual documents mandating arbitration in Illinois using New York law for California workers' compensation policy disputes.
Zurich doesn't have to write workers' compensation business in California if it doesn't like the laws or the jurisdiction. But I can see why it likes the business.
According to CDI records, the Zurich Insurance Group was the second-largest carrier in California at the end of 2010, with $611 million in written premiums and 8.6% of market. The largest workers' comp carrier, State Compensation Insurance Fund, had a 16% market share.
Steve McKay, media and public relations director for Zurich, said in an email to WorkCompCentral that the carrier is “currently reviewing the enforcement action and will look to resolve with the department any concerns contained therein.”
Where? In Illinois? With New York law?
The insurance industry makes a big deal out of claimant fraud, even though statistics reflect that only about 1% of all claims have any fraud component. Carriers also make a big deal about employer fraud, which IS a big deal because the numbers are so much greater. Carriers don't like to point fingers at themselves though for obvious reasons even though history is replete with bad actors hiding behind insurance licenses involving big money.
Zurich's actions border on the fraudulent. It knew what it was doing and that it was against California law.
Since May 2003, Zurich initiated large-deductible agreements by issuing a policy and large-deductible endorsement attachment that were both filed with the Rating Bureau and approved by the insurance commissioner. But, CDI says, Zurich would enter into a “separate agreement” that is not part of the filed policy or endorsement, calling for arbitration in Illinois using New York law.
The separate agreements were never filed with the Rating Bureau or CDI as “a knowing and/or intentional practice that was undertaken for the purpose of avoiding review,” the CDI complaint says. Additionally, Zurich was notified of the filing requirement in 2011, but “continued to fail and refuse to file” the separate agreement with the Rating Bureau and the Insurance Department.
And in August 2011, Justice Eileen Bransten of the Supreme Court of the State of New York refused to enforce an arbitration clause included in a policy written by Chartis subsidiary National Union Fire Insurance Co. of Pittsburgh covering Southern California staffing agency Source One Staffing. Bransten said the arbitration agreement was not filed with the California Insurance Department, and forcing arbitration would "invalidate, impair or supercede" California's Insurance Code in violation of the McCarren-Ferguson Act of 1945.
I'm sure Zurich brass weighed the consequences - that's good risk management - and the consequences weren't so terrible. After all, will CDI really revoke Zurich's license to do business in the state and remove over $600 million in coverage?
And the worst that could happen is that a dispute ends up back in a California court - and what the heck, a couple of years of litigation just to get to a ruling that arbitration is not enforceable is good litigation practice management when resources are disproportionately in favor of a large insurance company.
But really, what am I complaining about? Zurich got caught. CDI will have a word with them, probably pay a small fine, and then go on with business as usual until the next time some ingenious, albeit legally questionable, risk management technique is introduced and implemented.
But if I'm from California with a California dispute, I want my fellow Californian's interpreting California law to resolve that dispute. I don't know many people in Illinois. I don't know New York laws. And I certainly don't like that my fate would be decided by a single person with no appeal available.
Now, in Zurich's defense, at issue are contracts with large loss deductibles, which means that the businesses covered by such contracts are pretty big businesses probably with dedicated risk management departments employing dozens of legal minds. These guys knew what they were buying and liked the pricing, which Zurich could do if it kept things out of the expensive and unpredictable California litigation environment.
That would be fine - but Zurich failed to have the contracts approved by CDI. What was it hiding? Why was Zurich afraid to have those contracts reviewed by CDI?
So, bully for CDI in taking Zurich to task for, CDI alleges, trying to scam the insurance purchasing public by including contractual documents mandating arbitration in Illinois using New York law for California workers' compensation policy disputes.
Zurich doesn't have to write workers' compensation business in California if it doesn't like the laws or the jurisdiction. But I can see why it likes the business.
According to CDI records, the Zurich Insurance Group was the second-largest carrier in California at the end of 2010, with $611 million in written premiums and 8.6% of market. The largest workers' comp carrier, State Compensation Insurance Fund, had a 16% market share.
Steve McKay, media and public relations director for Zurich, said in an email to WorkCompCentral that the carrier is “currently reviewing the enforcement action and will look to resolve with the department any concerns contained therein.”
Where? In Illinois? With New York law?
The insurance industry makes a big deal out of claimant fraud, even though statistics reflect that only about 1% of all claims have any fraud component. Carriers also make a big deal about employer fraud, which IS a big deal because the numbers are so much greater. Carriers don't like to point fingers at themselves though for obvious reasons even though history is replete with bad actors hiding behind insurance licenses involving big money.
Zurich's actions border on the fraudulent. It knew what it was doing and that it was against California law.
Since May 2003, Zurich initiated large-deductible agreements by issuing a policy and large-deductible endorsement attachment that were both filed with the Rating Bureau and approved by the insurance commissioner. But, CDI says, Zurich would enter into a “separate agreement” that is not part of the filed policy or endorsement, calling for arbitration in Illinois using New York law.
The separate agreements were never filed with the Rating Bureau or CDI as “a knowing and/or intentional practice that was undertaken for the purpose of avoiding review,” the CDI complaint says. Additionally, Zurich was notified of the filing requirement in 2011, but “continued to fail and refuse to file” the separate agreement with the Rating Bureau and the Insurance Department.
And in August 2011, Justice Eileen Bransten of the Supreme Court of the State of New York refused to enforce an arbitration clause included in a policy written by Chartis subsidiary National Union Fire Insurance Co. of Pittsburgh covering Southern California staffing agency Source One Staffing. Bransten said the arbitration agreement was not filed with the California Insurance Department, and forcing arbitration would "invalidate, impair or supercede" California's Insurance Code in violation of the McCarren-Ferguson Act of 1945.
I'm sure Zurich brass weighed the consequences - that's good risk management - and the consequences weren't so terrible. After all, will CDI really revoke Zurich's license to do business in the state and remove over $600 million in coverage?
And the worst that could happen is that a dispute ends up back in a California court - and what the heck, a couple of years of litigation just to get to a ruling that arbitration is not enforceable is good litigation practice management when resources are disproportionately in favor of a large insurance company.
But really, what am I complaining about? Zurich got caught. CDI will have a word with them, probably pay a small fine, and then go on with business as usual until the next time some ingenious, albeit legally questionable, risk management technique is introduced and implemented.
Tuesday, February 28, 2012
Workplace Bullying Legislation - Really??
I'm going to Hawaii next week, ostensibly for a vacation, but perhaps there's purpose to my visit outside of rest, relaxation and surfing in eighty degree water.
A bill has been introduced into the Hawaii Senate making "workplace bullying" by public employees a safety violation and making aggrieved employees eligible for workers’ compensation benefits tied to emotional distress.
SB 2487, would give public employees who are victims of abusive conduct a course of action for emotional distress against another employee who is claimed to have made the abusive conduct. The employer would be “vicariously liable” for the acts of the bullying employee and subject to a penalty of up to $25,000.
Additionally, the bill would give abused workers the right to sue for emotional distress an employer whose workplace is an abusive work environment or who directly commits abusive conduct.
An employee would also be allowed to accept workers’ compensation benefits for emotional distress rather than bringing a legal action against the employer or co-worker.
The legislation would create affirmative defenses for businesses in situations where the employer exercised reasonable care to prevent and correct the abusive conduct or the complaint is based upon an employment decision, such as termination or demotion due to an employee’s poor performance.
The bill would require any complaint be filed within three years.
The bills are all based on language provided to lawmakers from the Workplace Bullying Institute in Washington state.
"Abusive conduct" is defined in the Hawaii bill as:
(1) Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests;
(2) Subjection of an employee by the employee's employer to an abusive work environment; or
(3) Retaliation in any manner against an employee because the employee:
(A) Opposed any unlawful safety violation under this part; or
(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including but not limited to internal proceedings, arbitration or mediation proceedings, and legal actions.
Abusive conduct may include but is not limited to repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation. A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.
Similar bills were introduced in Utah and Washington this year, but both measures are dead.
Anti-bullying measures were also introduced this year in Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Vermont, Wisconsin and West Virginia.
The Institute is working to line up sponsors to introduce similar legislation in California in 2013.
I'm going to call it like I see it - Really??? Do we really need this legislation?
This is the kind of law that fosters needless litigation, increases public employer costs tremendously, and in my personal opinion, has no real purpose other than to fatten the wallets of those providing services focused on this alleged problem (of which I have my doubts).
Indeed, the Institute's website makes it very clear that they are in a business to provide goods and services based on the perceived risk or actual experience of workplace bullying with coaching for individuals and organizations, books, DVDs, training, public appearances, etc:
"WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations. The Drs. Gary & Ruth Namie, Founders".
A bill has been introduced into the Hawaii Senate making "workplace bullying" by public employees a safety violation and making aggrieved employees eligible for workers’ compensation benefits tied to emotional distress.
SB 2487, would give public employees who are victims of abusive conduct a course of action for emotional distress against another employee who is claimed to have made the abusive conduct. The employer would be “vicariously liable” for the acts of the bullying employee and subject to a penalty of up to $25,000.
Additionally, the bill would give abused workers the right to sue for emotional distress an employer whose workplace is an abusive work environment or who directly commits abusive conduct.
An employee would also be allowed to accept workers’ compensation benefits for emotional distress rather than bringing a legal action against the employer or co-worker.
The legislation would create affirmative defenses for businesses in situations where the employer exercised reasonable care to prevent and correct the abusive conduct or the complaint is based upon an employment decision, such as termination or demotion due to an employee’s poor performance.
The bill would require any complaint be filed within three years.
The bills are all based on language provided to lawmakers from the Workplace Bullying Institute in Washington state.
"Abusive conduct" is defined in the Hawaii bill as:
(1) Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests;
(2) Subjection of an employee by the employee's employer to an abusive work environment; or
(3) Retaliation in any manner against an employee because the employee:
(A) Opposed any unlawful safety violation under this part; or
(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including but not limited to internal proceedings, arbitration or mediation proceedings, and legal actions.
Abusive conduct may include but is not limited to repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation. A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.
Similar bills were introduced in Utah and Washington this year, but both measures are dead.
Anti-bullying measures were also introduced this year in Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Vermont, Wisconsin and West Virginia.
The Institute is working to line up sponsors to introduce similar legislation in California in 2013.
I'm going to call it like I see it - Really??? Do we really need this legislation?
This is the kind of law that fosters needless litigation, increases public employer costs tremendously, and in my personal opinion, has no real purpose other than to fatten the wallets of those providing services focused on this alleged problem (of which I have my doubts).
Indeed, the Institute's website makes it very clear that they are in a business to provide goods and services based on the perceived risk or actual experience of workplace bullying with coaching for individuals and organizations, books, DVDs, training, public appearances, etc:
"WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations. The Drs. Gary & Ruth Namie, Founders".
The Institute supports its cause with "research" - a couple of highly subjective surveys based upon the "repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation, & humiliation".
Honestly - that sounds like every employment environment I have ever witnessed. This is such a highly subjective standard there can be no qualitative basis for comparison in one case to the other.
Are there bad apples out there in the public sector work place? Sure. And they are dealt with like any other bad apple presently - with employment based discipline.
But this type of law creates new causes of action and/or or exceptions outside of workers' compensation jurisdiction and is the type of law that is the proverbial slippery slope, and before we know it the private sector will likewise be subject to such regulation.
Are there bad apples out there in the public sector work place? Sure. And they are dealt with like any other bad apple presently - with employment based discipline.
But this type of law creates new causes of action and/or or exceptions outside of workers' compensation jurisdiction and is the type of law that is the proverbial slippery slope, and before we know it the private sector will likewise be subject to such regulation.
Not only is this kind of law a slippery slope into an unknown abyss of moral regulation, but to define any act as workplace bullying requires a finding of fact, which means extensive, expensive, lengthy litigation that can ultimately serve only to further demoralize the work force.
To those states that are seriously considering this sort of legislation - get serious. There are more imperative issues out there that require debate.
To those states that are seriously considering this sort of legislation - get serious. There are more imperative issues out there that require debate.
Monday, February 27, 2012
A Bankruptcy Court Flirts With Dangerous Precedent
A very interesting legal fight is going on in Maine involving the bankruptcy of a self-insured employer.
The case is In re Irving Tanning Co. et al, No. 10-11757-LHK.
At issue is an attack on bankruptcy subject, Prime Tanning-Hartland's, set aside reserves for future claims.
The bankruptcy trustee wants to liquidate the reserves except for the amount that has been estimated as necessary to fulfill the outstanding claims obligations.
Those opposed to the plan (the Maine superintendent of insurance, the Maine Self-Insurance Guarantee Association, the Missouri Department of Labor and Industrial Relations and the Missouri Private Sector Individual Self-Insurers Guaranty Corp. have filed objections to the reorganization plan; Prime Tanning-Hartland had operations in both Maine and Missouri) say the move is unprecedented and threatens a precedent where self-insured reserve accounts may be fodder for future liquidations.
Apparently, according to the International Association of Industrial Accident Boards and Commissions (IAIABC), there is much more in the reserve account than the face value of the outstanding claims.
The liquidation plan proposes that the bankruptcy court estimate the total amount of Prime's present and future workers' compensation liabilities and then release any amount of security determined to be in excess of this estimate to Prime for payment to its creditors.
Objectors to the plan have some valid concern.
As we know because of our connection to the industry, it is very difficult to estimate the future liability of long tail claims, in particular those with outstanding future medical for catastrophic injuries.
Greg Krohm, a consultant for and former executive director of the IAIABC, pointed out that if the court's estimate under the proposed plan is too low, injured workers will be "left holding the bag." IAIABC's report notes, "adverse surprises are common in workers' compensation," since claims are "exposed to substantial swings in cost due to medical treatments, costs of care, and claimant life expectancies…"
I think worse, however, is that if this court action is allowed to proceed the availability of bonds to secure such reserves will either become uneconomical or unavailable.
Surety bonds are absolutely necessary for smooth insurance financial transactions in the self-insured industry. Bond-makers will not look at the self-insured risk as acceptable if there is the threat that, should an employer file bankruptcy, its surety bonds will be looked upon as the first line of guarantee for injured worker claims.
The case is In re Irving Tanning Co. et al, No. 10-11757-LHK.
At issue is an attack on bankruptcy subject, Prime Tanning-Hartland's, set aside reserves for future claims.
The bankruptcy trustee wants to liquidate the reserves except for the amount that has been estimated as necessary to fulfill the outstanding claims obligations.
Those opposed to the plan (the Maine superintendent of insurance, the Maine Self-Insurance Guarantee Association, the Missouri Department of Labor and Industrial Relations and the Missouri Private Sector Individual Self-Insurers Guaranty Corp. have filed objections to the reorganization plan; Prime Tanning-Hartland had operations in both Maine and Missouri) say the move is unprecedented and threatens a precedent where self-insured reserve accounts may be fodder for future liquidations.
Apparently, according to the International Association of Industrial Accident Boards and Commissions (IAIABC), there is much more in the reserve account than the face value of the outstanding claims.
The liquidation plan proposes that the bankruptcy court estimate the total amount of Prime's present and future workers' compensation liabilities and then release any amount of security determined to be in excess of this estimate to Prime for payment to its creditors.
Objectors to the plan have some valid concern.
As we know because of our connection to the industry, it is very difficult to estimate the future liability of long tail claims, in particular those with outstanding future medical for catastrophic injuries.
Greg Krohm, a consultant for and former executive director of the IAIABC, pointed out that if the court's estimate under the proposed plan is too low, injured workers will be "left holding the bag." IAIABC's report notes, "adverse surprises are common in workers' compensation," since claims are "exposed to substantial swings in cost due to medical treatments, costs of care, and claimant life expectancies…"
I think worse, however, is that if this court action is allowed to proceed the availability of bonds to secure such reserves will either become uneconomical or unavailable.
Surety bonds are absolutely necessary for smooth insurance financial transactions in the self-insured industry. Bond-makers will not look at the self-insured risk as acceptable if there is the threat that, should an employer file bankruptcy, its surety bonds will be looked upon as the first line of guarantee for injured worker claims.
What's more - this is a federal attack on the sole province of state jurisdiction.
Prime's lead attorney, Robert J. Keach of Bernstein, Shur, Sawyer & Nelson in Maine, dismisses the alarms and told WorkCompCentral that all claims "will be fully adjudicated and liquidated at the state level," and the bankruptcy court is being asked to "set aside enough money in excess of any conceivable amount to pay those claims."
Prime's lead attorney, Robert J. Keach of Bernstein, Shur, Sawyer & Nelson in Maine, dismisses the alarms and told WorkCompCentral that all claims "will be fully adjudicated and liquidated at the state level," and the bankruptcy court is being asked to "set aside enough money in excess of any conceivable amount to pay those claims."
Keach related that Prime was willing to "take the claims at face-value," and have the court base its estimate on the amounts the injured workers and their attorneys have demanded. "One would assume they erred on the high side," he said.
We have all seen civil attorneys flounder in workers' compensation proceedings to the point of malpractice. I have no reason to believe that a bankruptcy court judge or trustee would fare any better.
The court in this case is tinkering with dangerous precedent.
We have all seen civil attorneys flounder in workers' compensation proceedings to the point of malpractice. I have no reason to believe that a bankruptcy court judge or trustee would fare any better.
The court in this case is tinkering with dangerous precedent.
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