A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
 
  How To Do It: Articles, Interviews
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Articles emphasizing practical knowledge you
can't find in practice guides

  People Who Made A Difference
Profiles of people who changed workers’ compensation law.

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• Warren Schneider
• Marjory Harris

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HARRIS: Linda, what drew you to workers’ compensation practice?

ATCHERLEY: 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

 
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.

HARRIS: You were born in Hong Kong. What brought you to San Diego?


ATCHERLEY: 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.

HARRIS: We now have a workers’ comp system which favors cost-cutting and procedural impediments over the Constitutional mandate of “full provision for such medical, surgical, hospital and other remedial treatment…to cure and relieve from the effects of such injury” and to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” What can be done to make the system achieve the Constitutional goals?

ATCHERLEY: 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.

HARRIS: Workers’ compensation has long been polarized, with employers angry over the costs of the system, workers angry over the meager benefits, profit-seeking insurers, penny-pinching self-insurers, and the medical industry torn between standard of care issues and obstacles to prompt treatment. It seems worse since SB 899. Do you see the system ever working in a way that would satisfy the various interest groups?

ATCHERLEY: 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.

HARRIS: Bad as it seems now, it could get even worse. What perils loom on the horizon?

ATCHERLEY: 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.

HARRIS: I asked this question of Jettie Pierce Selvig, Esq., and of Melissa Brown, Esq., in previous profiles, and I am curious how you feel. “We are currently witnessing around 30 years of advances in the rights of injured workers wiped out in one legislative session. Everyone talks about “the pendulum” having swung too far in one direction and inevitably swinging back toward the middle. Do you think that will happen, and how long will it take?”

ATCHERLEY: 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?

ATCHERLEY: 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.

HARRIS: I can’t imagine that with your busy law practice and all the organizational work you do that you have much time for leisure. What do you do when you’re not working?

ATCHERLEY: 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?

ATCHERLEY: 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



 

> Five Facts About Psych Injuries
> People Who Made a Difference
> Work Impairment & Disability
> Computer Corner: More Productive
> PD Pain Under SB 899, Part II
People Who Made a Difference


In an ongoing series of profiles on people
who made a difference in workers’
compensation law, Marjory Harris interviews
Linda F. Atcherley, Esq. A certified specialist in workers’ compensation
law and past President of California Applicants Attorneys Association,
Ms. Atcherley was named “Applicant Attorney of the Year” by the State Bar of California for 2008.