"The probability that we shall fail in the struggle should not deter us from the support of a cause that we believe to be just."
Abraham Lincoln
"It's déjà vu all over again."
Yogi Berra
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Sometime prior to the passage of SB666 (no, this is not a typo, see my last rant...), I woke up from a 20 year coma.
Until the point where the reality of SB666 was seriously looming on the horizon, my "legal life," in the practice of Employee's Compensation, was fat and lazy.
The biggest complaint that the Applicant's Attorney's had, at that time, was that Gray Davis was slow in approving promises he had made to increase permanent disability rates.
The threat posed by SB666 had suddenly aroused my dulled, natural instincts for survival.
Never mind increases: we were now being threatened with outright extinction. As a result of our collective complacency, as Malcolm X said after the Kennedy assassination, "the chickens are coming home to roost."
In the panic of the apparent democratic sellout, it appeared that the only remedy for this injustice would be in the form of an initiative. Thus, on March 8, 2005, in response to the passage of SB666, I wrote in the commentary section of Work Injury.com:
"ALL THOSE IN FAVOR OF AN INTIATIVE TO REPEAL OR AMEND SB899 ON THE O6 BALLOT SAY AYE RIGHT HERE ON WORKINJURY.COM
JUST REPLY WITH THE WORD AYE AND ANYTHING ELSE YOU WANT TO SAY." (See commentary section of WorkInjury.com).
At that time, these comments generated much enthusiasm amongst the local CAAA membership but alas, it was just a pipe dream. And, like pipe smoke, the idea disappeared into the ether.
The 2006 election came and went without an initiative. Since then the Insurance industry has completed putting together their Medical Provider Networks, (MPN), and they have succeeded in obtaining case law that essentially guarantees that every Truly Injured Worker (TIW), and every Truly Injured Employee, (TIE) will be treating with the MPN COMPANY DOCTORS.
For reasons discussed previously, and below, this, in my estimation, is the quintessential issue in a TIW'S case.
In my last rant, MEAT ON THE TABLE, in case you missed it, the point was that the chance of getting a good result regarding the issue of permanent disability under the AMA is directly proportional to the primary treating doctor (PTP) in control of the case. The same is true for every other issue in every case, including medical treatment, temporary disability and vocational rehabilitation.
The purpose for establishing the MPN, I maintain, was to establish a system where the (PTP) was completely under the control of the insurance company, and hence, in control of all of the issues mentioned above.
In summary then, the stated reason of the establishment of the MPNs, to reduce medical costs, was a ruse. The real or esoteric meaning was to establish control of all of the PTPs which results in control of all aspects of all of the cases.
The results of SB666 are becoming more apparent in the real world in the practice of Workers' Compensation, as the effects of all of the changes are starting to be felt.
The next chance we will have to make substantial changes by way of initiative will be in the election in 2008.
This time we have a head start.
Attorney WILLIAM MORRIS, at his own time and expense, actually filed an initiative approved for the 2008 ballet!!! (To read about that, CLICK HERE.)
BRAVO Mr. Morris!
The initiative proposes, in essence, that the rules regarding the choice of Primary Treating Doctor return to those in place prior to the enactment of SB666. In addition, the rule establishing the "Treating Doctor Presumption" is reinstated.
Mr. Morris's initiative, if passed, therefore, would, to some extent, result in the return of an even playing field. It would be a major step toward regaining the Freedom and Dignity that the TIW lost with the passage of SB666. The Knights and their Symbionts would have a fighting chance to survive (to read that rant, CLICK HERE).
Early on CAAA, sensing the injustice and importance of this issue, filed a case with the Appellate court entitled D'AMATO (to read that case and article, CLICK HERE).
In this case CAAA argued that TIWS that had started medical treatment prior to the implementation of the MPNs should be allowed to continue treatment with the doctor of their choice. The underlying principle of the lawsuit was that the doctor patient relationship was integral to the success of the treatment and that economic considerations should be second to the health, safety and welfare of the TIW.
This principle was established by the Supreme Court of California, and is still the law today, (sort of), (see Knight, Zeeb vs. Voss ).
As a result of the Supreme Court cases, the legislature enacted Labor Code (LC) 4603 which stated that a TIW would not have to change treating doctor to the COMPANY DOCTOR unless the employer could show "good cause." In order to do this, the employer, or their insurance company, would have to file a petition with the administrative director outlining why the TIW should have to abandon the doctor they trusted.
CAAA's lawsuit was prompted by the passage of rules promulgated by the newly appointed administrative director, Andrea Hoch, that required TIWs to "transfer care" when the insurance carrier set up a MPN.
Unfortunately, CAAA filed the suit prematurely, and it was dismissed without prejudice, (meaning they could re-file it when it was ripe).
In the recent case Knight, the appellate wing of the Workers' (Employees) Compensation Court, ruled that the TIW did not have to treat in the MPN if the employer and insurance carrier failed to provide the TIW with specific notices regarding the MPN.
The reason for these notices, and rulings, is that most people, (70% based on a poll taken by CAAA), feel that they should be able to pick the doctor of their choice in treating the injury.
The Knight case touched on the notion of Transfer of Care, but, however, did not rule on that issue. The case cited LC 4603 as well as the Supreme Court cases mentioned above and based upon the decision it appeared that they would surely rule that once the TIW was allowed to treat outside of the MPN they would not be forced to change to the COMPANY DOCTOR in the middle of their treatment absent Good Cause shown in a petition to the administrative director.
To my utter surprise, and chagrin, the WCAB, in a recent case ruled just the opposite. With twisted logic, they ruled that the TIW had to change to the MPN COMPANY DOCTOR despite the fact that the Supreme Court had clearly ruled that the doctor patient relationship should not be disturbed without good cause, because of the fact that said relationship is integral to the treatment itself.
It is truly an affront to the Freedom and Dignity of the workers and employees of this state to be denied the right to pick the doctor that, in many cases, is responsible for their lives and limbs. But then again, perhaps we are, as B.F. Skinner states, "Beyond Freedom and Dignity."
One would think that CAAA, having spent approximately $40,000.00 of donated money to have a public interest law firm prepare the brief, would have immediately refiled their suit given the gravity of the issue.
For reasons that the president of CAAA has failed to address, this has not been done.
What is more baffling, though, is that CAAA has announced that they are not supporting the initiative filed by Mr. Morris!
One response to my 2005 commentary, suggesting that we file an initiative, was by Attorney Gerald D. Brody who was a member of CAAA at that time. He stated:
"I believe CAAA should have filed a counter petition to SB899 in 2004. yes JOEY G A PETITION TO RESTORE BENEFITS IS WHAT IS NEEDED.
THE QUESTION IS WHY CAAA HASN'T?" (exact unedited quote of G.B)
Apparently, Mr. Brody is in agreement that CAAA should support Mr. Morris' initiative.
My understanding of CAAA's current position to NOT support Mr. Morris is that they feel that more can be accomplished with legislative change than this initiative.
This assertion is not supported by the evidence.
A bill was passed in the legislature to increase permanent disability and was sent to Governor S which he promptly vetoed.
What makes CAAA think that they will ever get any bill passed, and approved by Governor S in the near future?
Even if CAAA can obtain legislative changes, doesn't it make sense to fight for this initiative as well?
At the time Mr. Brody made the comment above he was not the Vice President of the local CAAA chapter. Now that he is in a LEADERSHIP ROLE it is imperative that he rally CAAA to get behind this initiative.
Like I said in my last rant and repeat here: "The leadership of CAAA needs do just that, LEAD."
Once again, and perhaps for the last time, Mr. Morris has given us the chance to turn the tide.
Will we let our chance slip by once more?
Is this "déjà vu all over again?"
In my mind, it's the bottom of the ninth inning, the bases are loaded, the score is 3 to 0, there are 2 outs, three balls, two strikes and CAAA is up to bat.
We need a grand slam homerun.
Will the leadership of CAAA take the pitch and be called out on strikes?
I'm betting he will courageously swing the bat, and, like Steve Garvey, run the bases to victory.
Will this be "Our Finest Hour" or will we be merely "Meat on the Table?"
Oh Captain, My Captain, please navigate our floundering, lost ship back to the Promised Land.
- J. Geller
May 28, 2007
