Funny place, Sacramento. The sands of allegiances shift slowly, far more slowly than would be expected with the short-term memory loss that affects most term-limited members of the legislature. But shift they do, and in the unsettled world of workers compensation, current winds of reform have blown two recent enemies back into the same tent.

Regardless of what we say or think about applicants attorneys, one quality they possess that all stakeholders can agree on is persistence.

Four years of agonizing debate that led to AB 749 (Tom Calderon) is a perfect example of that. Ultimately, they got what they wanted in benefit increases, preserving the then-dysfunctional PD system (aka keeping the litigation machine well oiled) and throwing in the bonus of being able to cash out vocational rehabilitation.

That latter move caught some observers by surprise, given the cozy relationship rehabilitation providers were thought to have with applicants attorneys. After CAAA successfully argued in court that the new provisions could apply regardless of date of injury, it was obvious to all that rehab professionals and attorneys were on a serious collision course.

That was only a taste of things to come. In what was their greatest challenge, CAAA crafted works of legislative art matched only by collections at the Louvre in AB 227 (Vargas) and SB 228 (Alarcon). Preserving the PD system, and facing a challenge to actually create real reform, CAAA took advantage of several well-intentioned reports from the Commission on Health and Safety and Workers Compensation and then helped to craft two bills that looked so good and did so little.

But what it did was profound. First, AB 227 repealed the mandatory vocational rehabilitation benefit. Why? In part, because it was too well documented that the benefit cost a lot of money and provided very little for injured workers. Second, SB 228 turned its sights on outpatient surgery centers and the medical fee schedule, both important cost drivers identified by Commission reports. Third, SB 228 sensitized the worldor at least Californiato treatment guidelines and utilization review.

Remembering that Job 1 was to preserve the PD structure, CAAA crafted holes in these reforms that were sufficient to create an illusion of massive reform while preserving business as usual.

Only the business community didnt buy it. In the end, AB 227 and SB 228 will be best known for what they were not able to preventthe recall of Governor Gray Davis and profound changes to the PD system as later embodied in SB 899 (Poochigian). Of course, that was little solace to the rehabilitation community, because real reform never contemplated re-enacting voc-rehab.

But in the chaos of transition to this new workers compensation system, windows of opportunity have emerged.

One, albeit a minor one, was opened by the administration itself in the form of the supplemental job displacement benefit, an alternative to voc-rehab created in AB 227. Regulations implementing that benefit allow up to 10 percent of the amount of the benefit to be paid to vocational rehabilitation counselors. But these regulations also allow settling out the benefit, which most observers believe will consign this benefit to irrelevance.

The bigger prize is in the new PD system. Changes brought about in SB 899 left both applicants attorneys and vocational rehabilitation providers out in the cold. Thus, these former antagonists have become engaged and an impending marriage of convenience will be solemnized at Appeals Board offices throughout the state very, very soon.

At the core of this relationship is the key concept of loss of future earning capacity as part of the new PD system. CAAA takes the position that this allows for introduction of evidence on the individual workers loss of future earning capacity as established by expert testimony. This is to rebut the prima facie rating established by application of the new schedule. Ergo, a lot more litigation and lot more legal expenses.

And where does one go to find such expert advice? Well, from a vocational counselor, of course. Experts in vocational rehabilitation have for decades analyzed loss of future earning capacity for personal injury lawyers.

This concept also is embedded in ADA, state and federal disability programs, and the now-repealed vocational rehabilitation benefit when deciding upon modified or alternative work options tied to pre-injury wages. Transformation from vocational expert to diminished-future-earning-capacity expert is quick and easy. It would have made Kafka proud.

Of course, the business community doesnt share CAAAs interpretation of the new PD statutes. They will argue that SB 899 defines loss of future earning capacity as an aggregate number established by RAND, measuring relative loss between classifications of representative workers, not individual wage loss. In the end, it will be up to the courts to decide which interpretation the legislature intended.

Meanwhile, CAAA and the rehab community have once again allied themselves. This is not the first time that strange bedfellows have been created by SB 899, and it will not be the last.