Thursday, October 29, 2015

You Don't Belong Here

Richard was an FBI agent.

He's a resident at Mom's memory care facility. I've known him since Mom started there.

Richard is in his mid-to-late 60s. He's over six feet tall, but hunches over on his walker so he looks more like five foot ten. He always wears an FBI hat, has at least 2 hand held radios (and gets very upset if one is missing) and, as one would expect from an FBI agent, always has a serious demeanor.

Vascular dementia is Richard's disease. According to the Alzhiemer's Association website, "Vascular dementia is a decline in thinking skills caused by conditions that block or reduce blood flow to the brain, depriving brain cells of vital oxygen and nutrients."

His wife told me that Richard was fine, a normal operating brain, when he went to bed one night. He woke up the next day severely incapacitated.

Vascular dementia can work like that, sort of like a stroke. One day you're all good, the next morning you have significant cognitive impairment, though more often than not changes are progressive, and yes, age is a factor.

Richard's dementia has attacked, in particular, his speech. He can still speak, but it is in whispered tones and he mumbles. I have to work very hard to understand what he is saying.

He also had an issue with his right arm. At first his wife thought it was a symptom of his vascular dementia, but Richard's physician determined that it was a pinched nerve because Richard was sleeping on it. A pillow between the arm and body at night resolved that, and now Richard's right arm is completely functional again.

After his right arm regained function, his wife asked Richard to write his name as a test of the progression of his disease. He didn't just sign his name, he composed a note:

"I love this place. But I don't belong here." [signature - which his wife said was true to his normal sign].

This brought tears to Richard's wife as she showed me the note. I welled up too. There is no other place for Richard to go...

Many in the California workers' compensation system, be they claimants or vendors, might love the space, but feel they don't belong and the courts are saying, essentially, love it or leave it.

Yesterday California's 1st District Court of Appeal upheld the constitutionality of independent medical review, concluding what has always been the overriding theme in workers' compensation legislative changes throughout history: the legislature can do whatever it wants.

"We conclude that [Frances Stevens'] state constitutional challenges fail because the Legislature has plenary powers over the workers’ compensation system under article XIV, section 4 of the state Constitution (Section 4)," the court said. "And we conclude that her federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard."

U.S. District Judge Jesus G. Bernal said in a Sept. 21 ruling in the RICO case brought by first responders against Corvel and York Risk Service that, "prior to final adjudication, workers' compensation claimants do not have a sufficient property interest in their benefits to establish the injury to property required for a RICO cause of action."

Workers' compensation is seen as a right by most of the population. Get hurt at work, or at least allege an injury, and it is the right of the claimant, and those riding his or her coattails, to benefits.

The court decisions are making it clear though that there isn't any right to workers' compensation benefits, and that what the legislature giveth, the legislature can taketh away.

Yesterday I said that workers' compensation is not about justice; that the system is simply a wealth re-appropriation system with dispute resolution built in to put finality to transactions that have some level of disagreement.

I think these recent court decisions firmly support that statement. The courts have warned that workers' compensation isn't worth fighting about; disputes don't belong in the courts because workers' compensation isn't about justice.

Work comp can't be about justice is because it is not a right bestowed by a constitutional grant. The only "right" is that the legislature has constitutional authority to do what it wants regarding work comp.

Sure, there may be some disagreement about exactly how much should be paid at a given time, or whether or not an "injury" falls within the ambit of work comp, or whether a particular procedure is authorized or covered ... but if the legislature says how to do something, or who gets what specifically, then that's the way it is and there's not a whole lot anyone can do about it other than get the legislature to change the rules.

There were times when Labor ruled the California legislature, and the work comp system expanded. Now Business rules the California legislature and work comp is contracting.

The fight isn't in the courts. The courts want nothing to do with work comp because there are no rights involved. One has a right to life, liberty and pursuit of happiness, sure, but those aren't guaranteed. It's up to individuals to sew their own guarantee though.

Which is why I concluded yesterday, "injured workers should get into and out of workers' compensation as rapidly as possible. Whatever it takes to exit the system with some modicum of health for the future, and whatever indemnity the law provides, is the goal."

The legislature has spoken, the courts have affirmed: Don't fall in love with the place. You don't belong here. 

And, unfortunately, there is no other place to go.

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