In mid-December of last year, amid the holiday spirit, three initiatives were filed with California's attorney general, called collectively "The Worker Empowerment Act." Each of these was filed by the same proponent with only slightly differing language, suggesting that whoever is behind these measures has at least some familiarity with California's multimillion-dollar initiative process. Slightly different versions of essentially the same initiative frequently are filed, the ultimate decision on which to move forward on left to polling, negotiation, and fundraising potential. There are other telltale signs that this is part of a well-orchestrated effort either to sway the governor and the legislature to do something significant in rolling back the reforms of the past several years or a signal telling them that, no matter what they do, there is going to be a battle on the ballot.

Recall that in 2004 one of the reasons the Democrats arguably gave up so much was the threat of an initiative. Several were filed with the secretary of state from a number of proponents, ultimately resulting in one going forward with the support of many California employers. At the last minute, SB 899 (Poochigian) was enacted and the initiative, even though gaining sufficient signatures to qualify for the 2004 ballot, was pulled. But was a far different environment than exists today.

No question that, moving into the 2006 election cycle, Democrat legislators are scrambling to find a way to save face after the perceived hardships created by SB 899. Doing something that truly mitigates against unintended consequences while not looking like they are trying to undo not only SB 899 but also reforms in AB 227 (Vargas) and SB 228 (Alarcon) is no easy task. That task is further complicated by these initiatives, for they not only want to undo the past four years of reform, they also want to undo the workers' compensation system in its entirety, and this includes the doctrine of exclusive remedy.

As is the case with some initiatives, it is not always immediately apparent who is sponsoring the measure. In the case of "The Worker Empowerment Act," it would be appropriate to round up the usual suspects. One version has a significant benefit increase. Another reinstates the treating physician presumption of correctness. There is also language that allows the injured worker to opt out of the workers' compensation system 90 days after the injury is reported, and allows providers to sue in civil court for unpaid medical bills. Each of them takes away the ability of employers to contract for pharmacy benefits.

It would be easy at this point to see the fine hand of the California Applicants' Attorneys Association and its grassroots subsidiary, Voters Injured at Work, in all of this. Furthermore, attorneys representing CAAA/VIAW in the abortive suits against the permanent disability rating schedule have a strong background in initiative law. Also, recent VIAW communications have hinted at a "new direction" for 2006. What better way to go than to the ballot box?

It is far too early to tell what is going to happen to these measures. At some point, one will be decided upon as the one to use to collect signatures for the next available general election ballot. Whether that is in 2006 or 2008 is uncertain. To qualify this for the 2006 ballot, it will take several million dollars. While it is arguable whether CAAA has these resources, if this initiative is designed to bring together medical providers and some elements of labor, then there could be critical mass, or in this case critical mess.

This is where the proponents have made a tactical error. In the case of SB 899, the Democrats felt they needed to take the workers' compensation issue off the table for the 2004 ballot. They probably feel the same way in 2006. The problem is that the governor likely doesn't share the sentiment. Thus, if this is for leverage in the legislature, there is no one to leverage. The more strident the Democrats become, the less likely the governor will listen to their demands. Furthermore, in this particular election year, there is nothing Governor Schwarzenegger would like more than to be able to saddle his opponent with turning the clock back on workers' compensation reform.

If, on the other hand, this is a serious ballot effort, then there is no reason to do anything in the legislature to address workers' compensation issues. Truly necessary changes will not be taken up and we will continue to be barraged by half-truths and hyperbole of those most disadvantaged by reform—attorneys and some medical providers.

As if this weren't enough, earlier this month, in response to a proposed insurance industry initiative amending Proposition 103, no less a luminary than Harvey Rosenfield opined that he would file a counterinitiative, including one that would regulate workers' compensation insurance rates. Only Harvey could urge greater controls when the market is taking significant rate reductions every six months.

Somewhere in Sacramento, a group of campaign consultants are smiling.