The politics of workers' compensation

Author Subject: The politics of workers' compensation
LIW (e-mailed to WI) Posted At 20:33:52 01/14/2000
The politics of worker's compensation

Advocate business writer

Louisiana's worker's compensation system, which nearly collapsed before it went through a sweeping overhaul a decade ago, is again stirring debate, this time over the handling of judges in the system.

Four former judges, including a chief judge who resigned in April, have claimed in interviews over a period of months that the Foster administration has sought to tilt the system in favor of employers. The former judges cited the administration's removal of some judges' job duties and its advocating a pro-business philosophy in a training session for new judges.

Former Chief Judge Mark Zimmerman said he was banned from hearing compensation claims filed by injured workers, and he believes it was because the administration viewed him as too liberal. Zimmerman said that led him to quit his job in the state Department of Labor in April.

Charles Davoli, an attorney for injured workers, said the administration also has been slow to fill vacant judgeships, dragging out injured workers' cases for long periods while it searched for pro-business judges.

"They have gone out of their way to create an imbalance," Davoli said.

Gov. Mike Foster, a Republican who generally espouses a pro-business philosophy, and his Labor Secretary, Garey Forster, deny the allegations.

"All I've ever asked the department to do -- as far as anybody we appointed -- was just to get good, fair judges, not biased on either side," the governor said in an interview in June.

Over a period of almost eight months, The Advocate conducted interviews and reviewed records related to the system, which each year handles as many as 6,000 disputes over whether employers must pay compensation benefits to injured workers.

Forster denied taking away Zimmerman's job duties. Forster portrayed the dispute with Zimmerman as simply a part of a running feud with organized labor over changes he has brought to the Labor Department since he took over as its secretary in 1997.

"Wake up and smell the coffee," Forster said. "This place is no longer run by the AFL-CIO. It's no longer 'just cut the check.'"

Forster said he has moved as rapidly as possible to fill vacant judgeships, and has done that without regard to the political views of job candidates.

System for disputes

Under state law, employers must pay all necessary medical costs for injuries suffered by workers while on the job. Injured workers also can receive up to two-thirds of their regular salary -- but no more than a maximum of $384 a week -- while they are unable to work.

In order to pay compensation claims, many employers buy insurance policies or pool their money with other employers to form an insurance fund.

Employers often dispute claims by workers. In that case, a worker can file a claim to be decided by a worker's compensation judge in the Labor Department. Before the case goes to trial, a mediator in the worker's compensation system tries to resolve the dispute.

Until the early 1990s, the state had a different system for handling worker's compensation disputes. Then, workers filed a disputed claim as a lawsuit in state district courts.

But in the late 1980s, the state's worker's compensation system was in a virtual meltdown. Numerous worker's compensation companies stopped selling policies in the state, claiming they were losing money. The cost of worker's compensation insurance soared, and employers demanded a solution.

One reason for the rising costs, employer representatives argued, was that compensation cases were bogged down in the state court system.

In response, the state Legislature, spurred on by then-Gov. Buddy Roemer, passed a law in 1988 transferring the cases from the courts to an administrative hearing process in which judges in the Labor Department's Office of Workers' Compensation (OWC) would rule on disputed claims.

Advocates for injured workers filed suit to fight the transfer, arguing that it violated a worker's constitutional right to have a case heard by a judge in the court system. After the state Supreme Court blocked the new system on just those grounds, Roemer led a push to amend the state Constitution to allow the cases to be heard by the judges who are employees of the Labor Department. Voters approved the amendment in 1990.

The changes meant judges hired by a political appointee of the governor -- and not judges elected by voters -- would rule on worker's compensation claims.

Yet the Legislature tried to insulate the new system from politics by giving the administrative judges the protections that classified employees have under state Civil Service rules. Those rules bar agencies from firing classified employees for political reasons or other factors unrelated to job performance.

Now, allegations by the former judges and others suggest that -- far from being a neutral ground -- the system has become the terrain for a bitter political battle.

Chief judge quits

Traditionally, the chief judge has filled in to hear cases when other judges were sick or there was a vacancy.

Zimmerman, the first judge hired under the new system by the Roemer administration, was appointed chief judge in 1995 under former Gov. Edwin Edwards.

Zimmerman said he considered hearing cases a vital part of his job. But in April 1998, Forster and Assistant Secretary of Labor Dan Boudreaux blocked him from hearing any new cases, Zimmerman said.

For a year, he could perform only minor administrative duties, such as signing time sheets, Zimmerman said.

"Unfortunately, I suspect my not being allowed to hear cases may be a result of being viewed as too liberal," he said.

The situation left him frustrated, and he resigned April 1, he said. He then joined a law practice representing injured employees in worker's compensation cases.

Zimmerman said he began his job in 1990 with a conservative mindset, having been a registered Republican for many years. But through years as a judge, Zimmerman said he saw many employers and insurers intentionally delay payments to injured workers.

Like some other judges, he said he had come to deal sternly with such conduct, issuing penalties that sometimes reached the maximum $2,000 permissible under law. That was appropriate, Zimmerman said, but he said he suspects the administration took away his duties hearing cases because employers complained about his actions on the bench.

Forster and Boudreaux denied Zimmerman's job duties were taken away for political reasons.

Boudreaux, the OWC director, said Zimmerman stopped hearing cases only because that was simply no longer necessary.

Previously, Zimmerman had heard cases because there were vacancies in some OWC courts, Boudreaux said. But the agency hired new judges in 1997, "so the necessity of (Zimmerman) going on the road to hear cases was no longer there," Boudreaux said.

Zimmerman dismissed that explanation. He said there were vacancies during the entire period in which he was blocked from hearing cases.

Training session draws fire

It is not only Forster's hiring decisions that have come under fire. Zimmerman and other judges also criticized comments the secretary made during a training session for new judges on April 24, 1998.

Forster told the judges the administration wants to support businesses.

"What the governor's concern is, is that we help nurture and develop the business community in this state," he said.

He said the administration advocates good job training so workers can get high-paying jobs, according to a tape of the session.

He went on to say, "We want to have a good safe environment that they're working in and we want to keep as many businesses not only safe but economically healthy in this state, and I just ask you to think about those things when you're making decisions and looking at what's going on out in the workplace between the businesses and their employees."

Zimmerman said those comments were improper because judges are not supposed to nurture the business community, but simply to decide without bias whether an employee deserves compensation under the law.

Another former judge, Linda Blackman of Shreveport, said Forster's comments were inappropriate and contributed to her reasons for leaving the agency.

"A supervisor of a judge should not ever comment on whether they want one thing done one way or another as to handling the suits before them," she said.

Blackman, who resigned in May 1998, said she is now in private practice representing both sides -- employers and injured workers.

Patricia Koch, one of the new judges at the session, said that Forster made it clear in the training session that he wanted the OWC to be "friendly" to business. She also said Forster made similar remarks in a job interview before she was hired.

Koch denounced the training session as biased in a letter she distributed in the Legislature when she resigned in February 1999, less than a year after she was hired.

Forster is sharply at odds with the former judges. He said his remarks were entirely appropriate, and that he has never tried to influence any decision.

He said he was simply pointing out to the judges that the administration wants the Labor Department to work together as a "family" in improving the state's economy.

"What we are supposed to be doing here is making the department a catalyst in the economy of the state," he said.

Deputy chief judge resigns

Aimee Johnson, the deputy chief judge, was the next to resign, quitting effective July 31, 1998.

"I resigned because I felt like the atmosphere was such that this administration was looking for pro-employer judges," she said. "They were looking to influence the judges' decisions."

Johnson, who became deputy chief judge in October 1995, said she regularly heard cases until shortly after she testified in a Civil Service Commission case. John Braddock, a former worker's compensation judge in Shreveport, claimed the administration had improperly demoted him for political reasons in 1996.

"The testimony I gave was contrary to the administration's position. Not long after that, all of my job duties were removed. I had no job duties except to assist with the computer," Johnson said.

"I felt that it was retaliatory," she said.

Johnson said the removal of her job duties was a thinly veiled threat to the remaining judges. They are now more likely to be extremely cautious in taking a position the administration might not like, Johnson said.

"It's a chilling effect," she said.

Forster denied seeking pro-employer judges and declined to comment on whether he took Johnson's job duties away from her.

"She's gone. I'm glad she's gone. I really don't care to respond to Aimee Johnson," he said.

Vacancies spur complaints

With Zimmerman's resignation in April, four of the agency's 18 judgeships were vacant.

For most of the next five months, four or five judgeships were vacant, a fact that led injured workers and their attorneys to complain that the administration put them at a disadvantage.

George "Bubba" Flournoy, an Alexandria attorney who represents injured workers, said in August that he believed the administration simply wants to hire pro-business lawyers.

The administration is in a bind because many corporate defense lawyers, the type the administration would like to hire, are well-paid and will not accept the relatively low salary the judges earn, Flournoy said.

The judges' annual salary starts at $36,936 and can reach as high as $65,268. The chief judge can make up to $85,548.

"They can't find somebody to fit their bill," Flournoy said.

"Most (corporate) defense lawyers probably will not give up their practice for the pay they will get," he said in August.

But since August, the OWC has hired one judge and reinstated another who was fired six years ago, bringing the total number of judges now at the agency up to 16. Thus, the OWC has just two fewer than the agency's total number of 18 judgeships.

Forster said in October he is conducting interviews to hire another judge, and he has decided not to fill the position vacated by Aimee Johnson.

"I see no need for a Deputy Chief Judge position so I do not intend to fill that position," he said.

Forster acknowledged the hiring process has not been fast, but blamed that on Civil Service rules.

"It is taking longer to hire than I would prefer because they are classified positions," he said. "It takes longer to hire in a state department than it would in the private sector."

But Civil Service director Alan Reynolds said his agency has no role in the process before a judge is hired. The agency does not test or rank candidates in any way. Civil Service only checks after the hiring to make sure a judge meets requirements set in law, such as having five years of experience as a lawyer, Reynolds said.

The judges have a significant caseload. Last year, about 6,300 disputed claims were filed and assigned to 12 judges, or about 525 cases for each judge, according to OWC.

Even so, Forster said, the vacancies in judgeships have not stopped his agency from reducing the length of time it takes to resolve a disputed claim through rulings or mediation.

Last year, it took 276 days on average to resolve a claim, while it took only 262 days as of Sept. 30 this year, Forster said.

Workers' wait cited

But such arguments don't ease the concerns of Bill Allison, a Shreveport lawyer who represents injured workers. He said the shortage of judges has aggravated a backlog in cases, meaning workers must wait even longer for decisions.

This is particularly true in Shreveport, where there are positions for two judges. The last judge resigned in June and wasn't replaced until the end of November.

One of Allison's clients, Tina Young, a truck driver who injured her back in 1997, said her trial -- originally set for February of this year -- was postponed twice because no judge was available.

Her employer, USA Waste Services Inc., paid for her surgery, but refused to compensate her for a period when she was unable to work, she said. After Young went back to work, the company dismissed her, she said.

"And since then my husband was laid off. It's been very difficult," she said. "And we have five kids."

The lack of a judge -- which has put off the resolution of the case -- has been an additional frustration, she said.

When USA Waste asked for a third postponement of the trial in October, it held out the offer of a partial payment. Young said she felt she had to accept it, and so the trial was put off again.

USA Waste attorney Brian Smith said he recently took over the case and was not sure what caused the trial to be postponed earlier this year. He said the company has compensated Young properly for her injury.

But Smith also said he does not doubt that the lack of judges has caused problems in Shreveport, where the OWC periodically sends a judge to hear a case.

"There's certainly been a problem here with the fact that we don't have a permanent judge, right now, and we're supposed to have two," he said.

"The availability of a judge up here is always a question and we don't usually know who the judge is going to be until the last minute," he said.

That uncertainty is partly or entirely to blame for the fact that he had 25 trials postponed from June to October, he said.

"I agree with some of the plaintiff lawyers that it's affecting the rights of employees and employers to get their issues decided," he said.

"It hurts employers, too," Smith said. Employers often file documents to reduce or terminate benefits but must wait for a judge to rule on the issue.

Some of the problems in Shreveport may have been eased since Nov. 29, when OWC appointed one of its mediators, Rosa Whitlock, to be a judge in the agency's Shreveport office.

Appointments under scrutiny

The administration's critics have complained mostly about the treatment of sitting judges, but they also have complained that politics has played too much of a role in the appointment of new judges.

It is not unusual that politics plays a role in the appointments, according to observers on both sides and former judges like Zimmerman.

Under the reform of the worker's compensation law adopted in 1988, appointments of judges have been made by the OWC director, who is also an appointee of the governor.

Tom Ruli, an attorney at the prominent New Orleans corporate defense firm of Juge, Napolitano, Guilbeau & Ruli, said the appointment of the judges is a highly political process controlled by the governor, whether Democrat or Republican.

The process is similar to the president's role in naming judges in the federal courts, he said.

"If you've got a Democrat in the White House, you're going to have more liberal judges appointed to the federal bench," he said. "Whoever's in the Governor's Mansion is going to have some type of control."

It is not unusual for attorneys seeking an OWC judgeship to turn to the governor's political allies or other political powers for recommendations.

For example, when Glynn Voisin, a former OWC director under Foster, drew up a list of candidates to be judges three years ago, those on the list making recommendations included something of a who's who of Republican politics in Louisiana.

The candidates were backed by such political powerhouses as then U.S. Rep. Bob Livingston, former Gov. Dave Treen, and state Sen. Ken Hollis, all prominent Republicans. Another was Speaker of the House Hunt Downer, a Democrat but a close ally of Gov. Foster at the time.

The role of political influence led to a row among three judges in 1996 when Foster urged then Labor Secretary Robin Houston to hire a Republican politician from Jefferson Parish, Anne Marie Vandenweghe, as a judge.

That move angered two veteran judges, who claimed they had been passed over for the vacant position and wanted to be considered for it.

One of those judges, Sheral Kellar, said Vandenweghe was a friend of Jefferson Parish Sheriff Harry Lee and was hired because of "political favoritism."

Vandenweghe was hired "at the insistence of Gov. Foster, as a personal favor to his long-time friend, Sheriff Harry Lee," Kellar alleged in a complaint to the Civil Service Commission.

Vandenweghe ultimately defused the dispute by taking a different judge's position, and the Civil Service complaint was later dismissed. Vandenweghe, who resigned as a judge in August, did not return calls seeking comment.

Foster said his support for Vandenweghe was unrelated to politics.

"I recommended her because I knew her and thought she would do a good job. I have no idea what her philosophy was," the governor said.

In May of this year, under Houston's successor, Garey Forster, Kellar became chief judge.

"We tried to pick somebody who we thought was fair and honest but also somewhat creative and reflective as to where we want this department and hearing process to go," Forster said.

Despite her earlier feud with the administration, Kellar said she has run into no problems with administration politics.

"There has never been any pressure on me to rule one way or the other," she said.

The Foster administration's appointments have won support from Denis Juge, a partner of Ruli's who has advised the Louisiana Association of Business and Industry on worker's compensation for more than a decade.

Pointing to Kellar in particular, Juge said the administration has taken steps to remove politics from the appointment process.

"I think what the Foster administration has done has been strictly done by the rules," said Juge, whose firm once defended Forster in a worker's compensation case when Forster was in private business.

"True, I'd love to have all those judges nothing but pro-business, but my clients are realists, they know that's not going to happen," Juge said. "All we want is a judge who will treat us fairly."

Davoli and other attorneys for injured workers agreed Kellar is a moderate, but they do not say as much for Stacy Auzenne of Alexandria, a former corporate defense attorney who was appointed judge in July.

Flournoy, the Alexandria attorney for injured workers, claims Auzenne is biased against him and has sought to recuse Auzenne from the case of an injured nursing home aide.

Auzenne did not return calls seeking comment.

Flournoy subpoenaed Forster and Boudreaux to testify in a Dec. 6 hearing on his request that Auzenne be recused. Flournoy said he suspected Forster had made pro-business comments to Auzenne similar to remarks he made in the 1998 training session.

Before the hearing could be held, Chief Judge Kellar reassigned the case to another judge, resolving the dispute, at least for now.

But Flournoy said the administration's politics are "corrupting the system," and he expects to try to have Auzenne recused from other cases involving his clients.

Kay Re: The politics of workers' compensation (Currently 0 replies)
Posted At 14:41:32 01/18/2000

The sins and crimes against the people cannot and willnot remain hidden. Never give out, never give up. Keep the faith and keep working toward a better day.
Deana Dutcher Re: The politics of workers' compensation (Currently 0 replies)
Posted At 18:35:39 03/05/2000

My husband Frankie has liver, brain and neurological damage from solvents he used on the job. His employer TXU Electric used our HMO doctors to with hold any information from us as to the cause of his illness. TXU also used intimidation and coercion against us to keep us from seeking legal help. Then, to put the icing on the cake, they had an "IME" done, not of Frankie, but of his medical records, or should I say PART of them. TXU went so far as to include in Frankie's medical records downright false, slanderous informaiton that was sent to every doctor he saw, causing them to refuse to treat him. TXU has commited CRIMES
Deana Dutcher Re: The politics of workers' compensation (Currently 0 replies)
Posted At 18:37:07 03/05/2000

My husband Frankie has liver, brain and neurological damage from solvents he used on the job. His employer TXU Electric used our HMO doctors to with hold any information from us as to the cause of his illness. TXU also used intimidation and coercion against us to keep us from seeking legal help. Then, to put the icing on the cake, they had an "IME" done, not of Frankie, but of his medical records, or should I say PART of them. TXU went so far as to include in Frankie's medical records downright false, slanderous informaiton that was sent to every doctor he saw, causing them to refuse to treat him. TXU has commited CRIMES AGAINST US, AND WE HAVE NO LEGAL RIGHTS TO STOP THEM.

Deana Dutcher

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