"A fool and his money are soon parted"
Old Testament
When I was in college, I fancied myself as being accomplished at chess.
In those free and fanciful days of youth, we would spend hours in the college pub enjoying our "adulthood" right to drink ungodly amounts of beer, eyeing beautiful girls, arguing politics and philosophy and showing our mental prowess by playing chess.
All was going fine until Professor Smedley showed up.
The professor held a masters ranking in chess.
He would take on five of us, all at the same time, back turned to the boards, drunk as a skunk, and without looking at any of the five boards going at the same time, hammer us into submission with the use of half his pieces.
It was truly remarkable how he would maneuver.
In the beginning of the game, he would make a move that seemed ridiculous. Ten or fifteen moves later, the relevance of the move would become apparent as you lost your queen or worse, when he slurred "checkmate."
As hard as I tried, I simply couldn't think that far ahead and shortly lost interest in the game.
The lesson I learned from chess is that an opponent whose thinking is far ranging into the contingencies of the future will usually defeat his opponent.
I submit that this lesson is being played out before our eyes in the realm of how the effects of SB899, (hereafter SB666) are presently manifesting. Moreover, if we have any chance to avoid checkmate in the near future, we must begin to think like a chess master by anticipating the moves the opponent is planning and come up with better moves.
From the point of view of the Applicant's Attorney's, the most vital issue is the level of permanent disability. Since this is where most of our attorney fees are derived, the severe reduction of permanent disability ratings directly affects our ability to make a profit in handling a Truly Injured Workers' case.
The vortex of the issue lies in the change in the method for rating permanent disability.
Prior to the implementation of SB666, the focus was on loss of ability to compete in the open labor market and disability was identified in terms of work restrictions.
For example, a person who sustained a back injury after surgery might be restricted to no bending and heavy lifting. Reasonable under the circumstances, since those are the activities that caused the injury in the first place.
This work restriction was translated into a percent of disability by way of a rating manual that was constructed by disability experts. Since the most one could be disabled is 100 percent, it could be calculated that loss of use of the back for lifting and bending was about a 25% loss. Other factors, including age and occupation, were also considered to formulate the final rating.
Under SB666 the focus is on "loss of earning capacity." Most significantly, the method for determining disability is initiated by estimating the "impairment" based upon AMA guidelines.
The EXOTERIC reason for the change was the assertion that the old method was subjective and resulted in inconsistent ratings. The new method is based upon "objective" evidence, such as x-rays and the application of a formula that is based upon the "scientific method." Under the new method, theoretically, any two or more doctors in the world would come to precisely the same initial rating of impairment if they correctly followed the procedure.
The application of this new method would, therefore, result in uniformity in ratings and less litigation, which in turn would save costs, expedite the case, and, of course result in lower premiums for employers since the altruistic insurance industry's main concern was for the health of our economy in California.
(Pause here to recover from the intense nausea the last sentence caused.)
I submit that the ESOTERIC reason for the change was simply to severely reduce ratings and consequently transfer vast sums of money from injured workers, and the applicant's attorneys, to the insurance industry. CLICK HERE)
To the applicant attorneys, this is obvious and is not the main point of this rant.
In the beginning, the effect of the AMA guides was of concern, but not of immediate relevance since the use of the guides was not in effect until 2005.
At the time of the passage of SB666, April 2004, we were not going to have to contend with the effects of the AMA guides for a couple of years. The immediate big issue was the new method of apportionment, which reduces rating, and our fees.
That was then; this is now. Due to time and some unfriendly court rulings we, more and more, have to confront the reality of the AMA as more and more cases are being decided on that basis.
CAAA had jubilantly theorized that the AMA 5th was not so bad, and, in fact, could be a boon if used creatively.
Now we could allege all kinds of new consequential injuries that we never considered in the past since the guides, (not set up for workers' comp in the first place), recognized impairments for sleep disturbance, sexual dysfunction, and internal organ damage due to heavy doses of medication, etc.
The problem that the short sighted CAAA missed, and continues to miss, is that of PRAXIS!
Praxis is the act of putting theory into practice.
In order to implement these new impairments, one needs a doctor who will "stick his neck out" and provide the medical evidence to state such impairments exist. Of course, this presumes that the doctor has developed an expertise in the AMA guides in the first place.
In any case, the establishment of the MPN's has resulted in a dearth of doctors who are willing to do anything other than follow the marching orders of the insurance industry. (Perhaps this is the ESOTERIC reason for the establishment of the MPNs in the first place.)
If you are lucky enough to find a doctor who is still willing to play ball with the fledgling applicant's attorneys, the next hurdle that has developed, at least here in San Diego , is the DEU (Disability Evaluation Unit).
It turns out that the DEU is looking toward one Christopher Brigham and Associates or at least his disciples for "guidance" in these matters. This was discovered during the cross examination of a rater by one of San Diego's finest. (See the Acosta case as well as CLICK HERE).
Let's take stock of the moves in this chess game to see where we are and to predict the moves that are planned.
Move 1: Get rid of Gray Davis via the Enron scandal and rolling blackouts as well as billions of dollars in losses to the California taxpayer.
Move 2: Get a centrist Republican Governor elected on liberal social promises that disguised the ultra conservative business agenda.
Move 3: Fund a massive campaign to strong arm SB666 by legislation or initiative backed by the dumbfounded masses of sheeple who lined up at Cosco to sign an initiative that cut their own
throats.
Move 4: Put in a workers' compensation legislation modeled on other states that have worked to the insurance carriers favor for the last twenty years in other conservative states.
Move 5: Have the administration order the bureaucracy to use the expert shill Brigham to dictate what the AMA says.
Move 6: Install a conservative administrative director to make sure the doctors are under the absolute control of the Insurance industry via "Transfer of Care" rules. See CAAA lawsuit and recent Knight and Baglione cases mandating that TIW's use MPN doctors.
Move 7: Load the WCAB appellate panel with a conservative majority to ensure no legal escape. (See the Pendergrass reversal).
Move 8: below!
At the moment the three AMA issues that are at stake are:
Rate grip loss even with loss of motion if the applicant can apply full force as the current guides states, (but not the juiced up DEU) .
Use range of motion when more than two herniated discs, well maybe but only if you define herniated disc in the most severe of terms.
Use Epworth to establish sleep disorders.
Have no idea what I'm talking about? Get an applicant's doctor who understands the AMA guides to explain it to you. Good luck finding one.
But don't worry, be happy.
Even if we somehow prevailed on these issues despite the loaded dice we are now playing with, the chess masters, having contemplated our moves, are in the making of ...
Move No 8: Employ Mr. Brigham to work as a consultant on the AMA 6th. (Brigham link CLICK HERE)
Recently, I saw a pie chart and a recent article on WCI.com of the allocation of money in the California WC system. It showed that SB666 has resulted in BILLIONS of dollars flowing to the insurance industry. If you think they are not employing think tanks to accomplish this, you really are in La La Land.(CLICK HERE).
Our disorganized haphazard efforts are no match for this master plan planned by masters which leads me back to Professor Smedley.
The only time that we ever defeated him was when we all combined our collective knowledge.
That night we had a master plan. First we got him good and drunk. Then we slipped him a "micky". When he finally passed out, we dragged him to a stall in the men's room, stripped him naked, and set the board up where he was in checkmate.
I would have loved to have seen his face that morning when he woke up. Rumor has it he was put away as he went insane trying to remember how in the hell we were able to beat him.
I guess the moral of that story is don't get too drunk when you're in battle. And never underestimate the enemy.
We applicant attorneys and other experts need to form a collective mind to have any chance to compete in this new system.
The organization and efforts of CAAA, that I have witnessed, indicates that CAAA is playing one move at a time and are oblivious to the oncoming checkmate.
The leadership of CAAA needs to do just that, lead.
Unfortunately, I believe that the arrogance of the attorneys that make up the applicant's bar results in a blind spot that is the greatest hindrance to the formation of an organization that can cope with the problem at hand. What CAAA needs to do is transform into an army or a beehive where all of the participants act in unison for the preservation of the hive.
The first thing I would recommend for CAAA is to take note of the name they bear. It is California APPLICANT'S ATTORNEY'S Association.
The association is there to represent the Attorneys interests, not necessarily
the applicants.
At this point in time, my interest is being able to prosecute workers' compensation claims on behalf of injured employees and I can do so only if it is profitable. Thus the first order of business for CAAA should be to lobby for a change in the manner that we can negotiate attorney fees. I see no reason why we should not be allowed to negotiate as do personal injury attorneys.
In fact, I was told by a high ranking member of CAAA that during the negotiation of SB666, the insurance commissioner had offered to include a provision for higher attorney fees. The response this member proudly announced to the commissioner was to shove his suggestion where the suns don't shine!
Excuse me! You want how much money to join an organization to protect my interests like that. No thanks.
And for those who are cringing at saying this out loud thinking, Oh no, this proves they are only money grubbing ambulance chasers please read my article Are We Knights in Shinning Armor or Mercenaries. (CLICK HERE).
The benefits that SB666 took away were taken away from the employees of this state. It was these people who voted Govenor S. into office, They stood in line to sign his initiative. They were the ones who drove by our little protest giving us the finger. Thus, I have no compunction saying what I have said herein.
(We should also change the name from Workers' Compensation to Injured Employee's Compensation. The term "Workers'" denotes physical or manual labor, not that there's anything wrong with that, but it tends to cause white collared workers to disassociate with the overall cause. That is until they become Truly Injured Employees TIES).
A Great Man once said, "the difference between man and animal is that man can think. A man that refuses to do his own thinking is nothing but an animal, meat on the table."
The voting masses who essentially voted in SB666 personify the proof of the truth of this statement.
Right now the insurance industry is sharpening their knives, getting ready to devour us. We had better start thinking for ourselves or we too will be nothing more than meat on the table.
- J. Geller
May 14, 2007
