It is no secret that we are now adrift in the wake of intense acrimony created by the too-well-funded campaign by California Applicants' Attorneys Association (CAAA) efforts to undermine SB 899. Whether before a microphone or a judge, CAAA is pulling out all the stops to bring us back to the time when they controlled medical care for injured workers, when they could mine case files for even the most minute flaws, confident that it would yield massive penalties, and when they controlled the pen that wrote legislation and signed it into law. To paraphrase our former governor, not everyone shares CAAA's vision.

"Many of the represented workers in the focus groups were dissatisfied with attorney services; some were angry with their attorneys. Several of the participants described how the attorney provided insufficient or inaccurate information. One participant, for example, said the attorney told him that payments would be sent to the worker within a week, but no payments arrived for three or four months. Another participant was angry that the attorney predicted he could settle the claim for a certain amount, but the ultimate settlement was much less than predicted and also less than the amount that the defense had offered before the worker hired the attorney."

Commission on Health & Safety & Workers' Compensation, Navigating the California Workers' Compensation System: The Injured Worker's Experience-An Evaluation of Services to Inform and Assist Injured Workers in California, July 1996.

Many of the anecdotes CAAA supplies to the press underscore problems and issues that predate SB 899. But that doesn't really matter to them, does it? Dire consequences predicted by CAAA of injured workers denied necessary medical care, claims delayed, and lives ruined sound eerily familiar to those who remember the same tactics when the same attorneys were calling for massive benefit increases in AB 749:

"It was with a measure of bitterness that the statewide cadre of lawyers who represent injured workers received the news that Governor Gray Davis signed a bill increasing workers' compensation benefits. On one hand, this was a long-overdue measure to bring California's workers closer to parity with the national average. On the other hand, it was long overdue. After promising, during his first election campaign, to sign a benefit increase, Davis vetoed three such bills, citing costs to California's employers. Following the third veto, a coalition of labor representatives, attorneys, and injured workers (spearheaded by Steve Duncan, a worker injured in a horrific refinery accident) prepared to press a ballot initiative that threatened higher increases than the vetoed bill." Miller, Christopher, Deciphering the Long-Awaited Workers' Comp Reforms, California Public Employee Relations (CPER) Journal, No. 153 (April 2002).

[The article states: "Christopher Miller practices law in Oakland, with the firm of Leary & Miller. He is certified by the State Bar as a specialist in workers' compensation law, and has served as a board member and local chapter president of the California Applicant Attorneys Association.]

Of course, not everyone saw the work of CAAA in the same benign light:

"AB749 is the equivalent of a gigantic tax on labor, paid for by business. In passing this bill, legislators went out of their way to understate the costs on business and overstate a half-hearted attempt at providing some offsetting cost savings…The current system has strong support among lobbyists for those who benefit from it, such as some parts of the health industry, unions, and attorneys." Pacific Research Institute, Punishing Innovation: A Report on California Legislators' Anti-Tech Voting, May 2004.

And benefit they do:

"In 2003, applicant attorneys were paid $258 million on insured claims (excluding those administered by CIGA). (In 2002, applicant attorneys were paid $226 million on insured claims.)" Workers' Compensation Insurance Rating Bureau of California, 2003 California Workers' Compensation Insured Losses and Expenses, June 2004.

In other words, over the two-year period of 2002-2003, applicant attorneys, in fees paid from self-insured claims and CIGA as well, were paid well over one-half-billion dollars.

With this amount at stake, it is understandable why CAAA may engage in hyperbole on occasion. For example, as one of CAAA's "horror stories" created by SB 899, they cite the case of Ms. Norene Merlo, an employee of both Providian Financial and later Wells Fargo, who sustained a repetitive motion injury. According to the press release - which is available on the CAAA web site - Ms. Merlo has had to wait more than a year to receive any benefit payments or necessary medical care. More than a year? Let's see, if memory serves, SB 899 was signed into law six months ago. Governor Schwarzenegger was elected about a year ago. That means that this claim was filed before SB 899 was enacted and while Gray Davis was still governor.

With no explanation as to why this case dragged on, CAAA proclaims that it is a result of "two rounds of cutbacks," apparently alluding to AB 227 and SB 228. As we will see in the coming months, CAAA will dig deeper and deeper into its members' caseloads and find any case - any case at all - to show how the workers' compensation system fails injured workers, and lay blame for all this on: (1) Governor Schwarzenegger and (2) insurance rate regulation.

bra·zen [bráyz'n] adjective 1. bold and unashamed: showing or expressing boldness and complete lack of shame

Some are surprised that CAAA would go to such extremes to exploit the very real tragedies of people stricken with industrial injury. Get over it. It is going to get worse in 2005.

It is our responsibility to make SB 899 work. That means providing timely, quality medical care. It also means having a renewed sense of value in our employees and helping them recover their lives after filing that claim form. Insurers must do a better job of balancing the needs and demands of workers and their sometimes quick-to-litigate employers, and employers must realize that the success of the system is not measured solely by X-MODs. There is much work to be done, but if we want to move beyond the shameful exploitation of the CAAA, we need to start that work now.

Meanwhile, the insurance industry and employers are failing to form a meaningful or unified coalition. This is against the backdrop of a politically unified California Applicants' Attorneys Association, which is both well funded and organized. CAAA has put out the call for horror stories, and CAAA is going to the general media, which nod and write the stories they're handed. CAAA somehow intends to prove in the court of law known as the legislature that rates should be lowered regardless of costs. Where are the attorney horror stories? Send them to feedback@wcexec.com, because someone has to start.

Lawyer, n: One skilled in circumvention of the law. (Ambrose Bierce).