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I started working as a full time law clerk for
a personal injury/workers compensation law firm by the name of Ludecke & Denton.
I was then hired upon passing the Bar and continued working on the
personal injury files as an Associate for |
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the senior partner, Alan
Ludecke. I was allowed to handle all aspects of the cases,
including sitting second chair of the files. In December 1991,
the attorney handling the firm’s workers’ compensation
files gave a two week notice as he was hired by a defense firm.
I was asked to take on the workers’ compensation cases
(some 400 cases). Thus, it was not so much being “drawn” to
the workers’ compensation practice as being thrown headfirst
into it. The bar down here is wonderful. Applicant attorneys
like Stanley Levine, Phillip Alpert and David Dugan, and others,
took me under their wing and helped me. I, of course, went
to the January 1992 CAAA Convention, which really helped me
deal with the three sets of laws that were in effect at that
time (1989 and before, 1990/1991 and 1992) with different procedures.
The defense attorneys also were patient and honest. The judges
also understood the position I had been thrown into and were
very helpful both at the conference and trial phases. A good
thing, since I was trying cases by March of 1992.
My father was an American Foreign Service officer
(Consular Officer) with the State Department. His last post was
Tijuana, Mexico. He retired in 1974 and we moved to Chula Vista,
California, a suburb of San Diego, after living in Hong Kong
(4 years); Tripoli, Libya (2.5 years); Accra, Ghana, (2 years);
Brasschat (a suburb of Antwerp), Belgium (3 years), and finally
Playas De Tijuana, Baja Mexico.
Strangely enough, one of the
judges at the WCAB, Judge Desiree Bruce-Lyle, was also from Ghana,
which I found out at in an office conference with the defense
attorney. We also found out that we were in Ghana at the same
time and went to rival schools. Sometimes you have to travel
around the world to find someone in your own back yard.
First, of
course, since the Legislature has “plenary power” to “fix
a system of workers’ compensation” we need to continue
to elect and educate legislators who understand the issues that
face injured workers as well as understand the issues with employers.
We also need to make sure that we also ensure that the Governor’s
office has the same empathetic and educated “ear”.
Somehow the message of injured people gets continually lost in
the need for business to expand and grow and gets reduced to
the dollars they receive rather than the harm they suffered and
how very little the compensation does to get the injured workers
back on their feet physically and financially. We also need to
have Legislators and a Governor understand that when injured
workers are not compensated for wage loss (TD) and not given
the skills and wherewithal to return to work and care for their
families and themselves (Medical Care, Voc Rehab, PD), it directly
impacts the tax payers and other social systems who then have
to carry the burden of the work injuries.
I do see
the system working in a way that would satisfy or equally dissatisfy
the different interest groups. First, it is not possible to satisfy
every member of every interest group. There are no cuts deep
enough for some or compensation too great for others. However,
there is a broad middle ground that accomplishes the constitutional
mandate of “providing for the health and safety, and general
welfare for the injured workers’ and those dependent upon
them for support,” as well as the goal of curing or relieving
the effects of the industrial injury to return the injured workers
to work as quickly and safely as possible. The way to accomplish
this is to be aware that this is a very dynamic system with the
effects of changes felt over years, at times. We need to have
continued dialog between the parties with a willingness to change
what is not working. We and CAAA need to participate in the
various user groups that deal with the issues of Return to Work,
permanent disability, EAMS and things like that, which have an
industry-wide effect. We need to look at changes that are easy
to administer and do not require the lengthy litigation path
that has been the hallmark of the legislation enacted pursuant
to SB899. We need to find ways to make sure we keep competent
physicians in the system and do not provide incentives to “game” the
system (e.g., physicians with 100 offices across the state to
appear on the QME panels more often). We need to continue to
educate the doctors about the need to familiarize themselves
with the Guides and how to correctly describe a person’s
disability. The recent cases are a great help in this regard.
I think that most of all attorneys need to stay in the workers’ compensation
system and participate fully in that system.
A Legislature and Governor who
are not responsive to the needs of the injured workers and are
unwilling to be educated on all the complex issues surrounding
workers’ compensation. The other peril is a 24-hour medical
care system which would further erode or eliminate the rights
of injured workers to receive medical care. For instance, in
a recent conversation with one of the proponents of 24-hour care,
Frank Neuhauser of UC Berkley and associated with Rand and the
Commission on Health, Safety and Workers’ Compensation
(CHSWC), I asked about continuity of care when an employee leaves
the employer where injured and goes to another employer without
the 24-hour coverage or goes to another state where the health
care carrier doesn’t have facilities. What happens then?
The answer was that’s “too bad,” they don’t
get care. There are also problems with part pay of health care
by employees and co-pays. Similarly, CHSWC conducted a study
and recommended that SDI be integrated and used for TTD instead
of TD. There were no recommendations to extend the length of
time benefits were provided and, of course, SDI is funded with
employee contributions and the Constitution requires that benefits
be provided by employers …“without encumbrance of
any kind” which means that the employees do not pay a share
of the costs of workers’ compensation, which means somehow
the SDI needs to take that into effect. The cry with all these
changes is to reduce costs to employers. There is lip service
that this results in easier access to care by employees, but
we have seen how well that has occurred with Labor Code §§4610
and 4616 (UR) and with the MPN’s. The end result is that
more and more employees will be paying for their own industrial
injuries while employers get more and more protection from the
cost of work injuries.
I do think that the pendulum will
swing to the middle. Some of the swing will occur naturally as
adjusters and attorneys understand the law and how to apply it.
It will also as a result of court decisions like the recent court
cases in Guzman and Ogilvie and as doctors begin to understand
how to use the guides and apply them to their patients. Some
of that swing has come from repeated attempts by the Legislature
to enact legislation to correct the problems with temporary disability
and permanent disability and will hopefully come with a different
administration that is willing to recognize the imbalance and
act to prevent further harm to injured workers.
HARRIS: You have
devoted a tremendous amount of time to the California Applicants’ Attorneys
Association and continue as spear-leader for EAMS. Are you optimistic
that the EAMS system will eventually work well?
I am optimistic that EAMS will eventually work well
or that solutions will be added to ensure that the “Electronic” part
of EAMS is effective for filing. I do know that the Administration
and providers are working together in working groups to try to
find answers as quickly as possible and to correct the problems
that are being found. I don’t think that this is possible
until either the “license” issue is resolved so that
anyone who wants one can get a username and password to file
their documents electronically, or another solution is found
to “bulk file” documents electronically so that the
WCAB staff can handle the paper filings, hearings and things
that they have to do internally, rather than simply getting documents
scanned and “into” EAMS. I think that we need to
continue to think in and outside the box, and to continue to
educate the Legislature on the EAMS issues so that “Budget” issues
do not prevent the court system from administering justice expeditiously
and inexpensively as required by the California Constitution.
I also think that the external users, (insurance companies, applicant
attorneys, defense attorneys, lien claimants) need to follow
the rules and to assist in whatever ways they can to help the
Courts process the filings and get these cases to hearing. A
failed EAMS will help no-one. A correctly working and efficient
EAMS and WCAB will help all of us do our work more quickly and
efficiently.
I go to movies with my husband. I read
lots of books, and lounge around with my three dogs. I go out
to dinner with my friends. I play the piano. I talk to my son,
who is finishing his Bachelor’s degree in Chemistry at
the University of Colorado. Occasionally I go to the stable and
ride or just play around with my horse, and sometimes, I sleep.
HARRIS: You have had an amazing career since you started practice
in 1990. Looking back, what do you consider your biggest accomplishments?
And what do you still hope to achieve?
I think that
the biggest legal accomplishment is really becoming President
of CAAA. Right up there would be being AV rated by Martindale
Hubble and receiving the State Bar award for Applicant Attorney
of the Year. I also really have appreciated the opportunity to
meet members from all chapters, meet with the Legislators on
our issues and participate in the various user groups, and meet
industry professionals from various sectors of the community.
I also had my first W/C Trial reported in our local (SD magazine)
published by David Dugan as the December 1992 “Case of
the Month”. It was an AOE/COE trial with a 16 year old
client with a finger amputation. The employer actually testified
what a great employee he was and they assumed their carrier was
going to take care of the injury. The carrier (Fremont) denied
the case alleging that the amputation occurred as a result of “horseplay” (applicant
tapped the top of a metal shelving unit with a “slam dunk” gesture
as he went on his way to deliver some shipping papers, the edge
was very sharp and cut off the ring finger.). The other part
I enjoyed was, besides winning at trial, that on Reconsideration,
the first paragraph of the Opinion on Reconsideration was the
first paragraph of my Opposition to Defendant’s Petition
for Reconsideration. I also serve as a Pro-Tem (Volunteer Judge)
for the San Diego Superior Court and have been able to do court
assignments for Small Claims. Lastly, being included as a “person
who made a difference” gives me hope that maybe I have
or that some of the things we strived to do together will eventually
make a difference.
For Linda Atcherley’s CV, click
here.
Linda Atcherley & Associates
7851 Mission Center Court
Suite
250
San Diego, CA 92108-1325
Tel: 619-325-0969
Fax: (619) 325-0936
E-Mail: Latcherley@Nethere.com
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