The New York Workers’ Compensation Alliance recently received a “cease and desist” letter threatening a libel action on behalf of Dr. Christopher Brigham and Phil Walker, Esq. (click here to see letter) over our opinions expressed on this blog regarding the AMA Guides to the Evaluation of Permanent Impairment.. The letter was written by Phil Walker himself, one of the allegedly aggrieved parties. Bottom Line - the New York Workers’ Compensation Alliance will continue to assert our First Amendment rights to criticize the AMA Guides and New York State Insurance Department’s contract with Dr. Brigham to bring them to New York.
The New York Workers’ Compensation Alliance is a non-profit, registered political action committee in New York State. Our goal is to protect injured workers and promote legislative and state action to achieve that goal. As such, we publish the New York Workers’ Compensation Alliance Blog to express our political opinions on issues of public importance to both injured workers and all citizens of New York State. Recently, the New York State Insurance Department paid Dr. Christopher Brigham $162,500 to evaluate New York’s current medical guidelines and determine the impact of applying the AMA Guides in New York State (click here to see contract). In our opinion, this contract and its timing was entered into secretly and was only fully disclosed by a Freedom of Information Act request to the State Insurance Department from the Workers’ Compensation Alliance.
Dr.Christopher Brigham and Phil Walker, Esq are both public figures who have numerous websites promoting their services explaining the AMA Guides to workers’ compensation stakeholders throughout the country. Their joint website (www.BrighamWalker.com) takes you to Walker’s www.askphilwalker.com where you can view streaming video of Phil touting his seminars to explain the AMA Guides. Similarly, the BrighamWalker website also takes you to Dr. Brigham’s website (www.impairment.com) where you can also find out about his AMA Guide seminars and “fill up your cart” in his online store. These are but a few of the numerous websites in which they are involved selling their services to the workers’ compensation community and state governments across the country. Clearly, both these gentlemen are involved in massive internet marketing of their AMA Guidelines related businesses.
The letter threatening legal action demands that the WCA Blog cease and desist from making further references to either Dr. Brigham or Phil Walker, Esq., and also demands apologies, retractions etc. by April 25, 2008. Below is our point-by-point response to this blatant intimidation and attempt to silence protected political speech:
1. Walker claims it is “untrue” that Dr. Brigham is “insurance company biased,” but anyone reading the blog can see that this characterization is a fair one, based on the evidence cited throughout the blog. In our view, the AMA Guides that Dr. Brigham promotes will decrease benefits to injured workers and increase profits for insurance companies. We stand by our opinion and have no doubt we have every right to accuse him of bias in his advocacy of the Guides.
2. Walker is technically correct in noting that the AMA Guides are not literally “Brigham’s AMA Guidelines.” We acknowledge that Dr. Brigham does not own the AMA Guides, he is simply the Senior Contributing Editor. We are sorry. Please deduct two points from our blog post score in the blogosphere. However, Dr. Brigham has shamelessly promoted the Guides and prominently sells them on his website. In fact, we bought a copy and are now on his e-mail list. For all intents and purposes, Dr. Brigham is the architect of the Guides, and in that sense, they are, indeed, his handiwork more than anyone else. For the time being, the AMA still publishes these controversial Guides, despite recent efforts by the New York Injured Workers’ Bar Association to have the AMA remove their imprimatur from the Guides. We will continue to support these efforts and stand by our belief and opinion that Brigham’s biased work should not endorsed or supported by the AMA or any state government.
3. Walker next takes us to task for noting that Dr. Brigham would rate a torn medial meniscus with surgery as a 1% loss of use of a lower extremity, claiming the rating is prescribed by the AMA Guides and would, in any event, be deemed a 1% Whole Person Impairment. What Walker overlooks is the fact that this statement was taken directly from a radio interview which Dr. Brigham re-publishes on his own website (click here for the interview). If we misconstrued his analysis on the radio, we apologize. Obviously, we need more training on the AMA Guides. Do you know of anyone? The more important point, of course, is to highlight Dr. Brigham’s advocacy of such worker-harming ratings. Torn meniscus surgery is not an inconsequential impairment, regardless of what Dr. Brigham says or claims and regardless of how it is classified in the Guides that Dr. Brigham endorses.
4. We stand by our well reasoned opinion that Dr. Brigham is a shameless self promoter who advertises his services to reduce benefits to injured workers. In fact, we share this opinion with others based upon the plethora of Dr. Brigham’s websites selling a multitude of services to the workers’ compensation community throughout the country. Walker can criticize us all he wants for expressing our opinion. We have every right to do so, and will continue to do so.
5. It remains our opinion that the “Guides” are “tarnished”, most recently bolstered by the opinion of preeminent workers’ compensation scholar, Prof. John F. Burton, that the AMA Guides are “hokum”. (see link to 4/15/08 video presentation by Prof. Burton to the New York State Workers’ Compensation Board).
6. It remains our opinion, shared by many others, that the AMA Guides are biased against injured workers. For this reason, there is a growing movement among state governments to reject the new Sixth Edition of the Guides, including the states Iowa, Vermont, Kentucky, and most recently Tennessee.
7. Since none other than workers’ compensation scholar, Prof. John F. Burton, has labeled the AMA Guides as “hokum” and “not evidence based”, our opinion that the AMA Guides are “voodoo science” seems appropriate.
8. Phil Walker, Esq, next complains, on his own behalf, that he is not Dr. Brigham’s “financial partner.” Our belief that Walker and Brigham’s financial interests are tied closely together is based upon a still existing website, www.BrighamWalker.com , which then leads to links to both Walker’s website and Dr. Brigham’s. On both sites, you will find Walker selling his services. After watching Walker’s “talking head video” on his website, we were tempted to “click here” to “get Phil Walker’s free CA [California] apportionment materials”. We are still mulling that over. Finally, regarding our allegedly anti-gay remarks towards Walker, he misconstrues our comments completely. We simply provided a link to a New York Times article in which Walker himself stated, “I am the gay Oprah”. We said nothing derogatory toward gays, Oprah or other talk show hosts. We like and respect Oprah. We wish Walker luck in his own talk show career and as a public figure. But please, Mr. Walker, do not try to intimidate and silence our political speech on issues of public concern and public importance.
9. Walker’s most amusing threat concerns our comment that the Brigham Walker duo are a “poor excuse for a vaudeville act.” Our comment was based upon the picture of the duo (Walker in a boxing pose, and Dr.Brigham looking perplexed) that has long been available for public consumption on the internet.
10. Dr. Brigham clearly is biased against workers. We repeat our opinion, and stand by it. Emphatically. Opinions cannot be libelous. They are fully protected by the First Amendment. Walker should know better.
11. The AMA Guides have been completely discredited in our minds, and in our opinion. We repeat our opinion, and stand by it. Emphatically. See also # 10 as to our rights under the First Amendment.
12. Again, given Dr. Brigham’s actions, the AMA Guides can fairly be deemed “Brigham’s guidelines,” but to the extent Walker still complains, see # 2, above.
13. Walker evidently doesn’t approve of our decision to post pictures of him and Brigham, but we considered it fair use since they put them in the public domain for commercial purposes. Nevertheless, to avoid complicating a simple first amendment dispute with issues of copyright and the like, we will remove same from our blog immediately. We generally do Spring cleaning on our blog this time of year anyway.
14.Walker’s claim that the posting of the pictures has harmed him is laughable, but as he requests, we will remove them.
15. We are tired by this point in having to respond over and over to Walker’s repetitive and duplicative allegations that our blogs are defamatory. But once again, for the record, we stand by our opinions as set forth in the blogs. In our opinion, Dr. Brigham is biased. We honestly believe, based on the evidence cited in the blogs, that Bruce Topman secretly hired Dr. Brigham. And the AMA Guides are, indeed, anti-worker in our opinion.
16. Walker complains about the photo again. See response to # 13.
18. Our opinion that Dr. Brigham is “the insurance and defense industry’s best friend” is based upon Dr. Brigham’s published articles in For the Defense, along with his published seminars on how to successfully combat injured worker “malingering”. We stand by our opinion.
19. It is comical, and perhaps speaks volumes about Walker’s entire letter, that one of his numbered complaints would object to our statement that Dr. Brigham “hangs out” in Hawaii, rather than “resides in” Hawaii!
20.Given that Dr. Brigham is the Senior Contributing Editor for the AMA Guides and Prof. Burton has labeled the Guides “hokum” and “not evidence based”, and that the AMA is currently considering the Injured Workers’ Bar Association’s request to remove their imprimatur from this publication, our opinion and belief that the AMA was “duped” is appropriate political commentary. Walker also seems not to understand that his client’s conduct could be considered embarrassing to the AMA, particularly as criticism of the Guides mounts throughout the country.
21. Perhaps we overstated the obvious in describing Dr. Brigham as an injured worker’s “worst nightmare IME.” But as hard as we try to think of anything worse that we have seen in real life [anyone know of a workers compensation doctor like the dentist in Marathon Man?], it seems appropriate to stand by our characterization, which is obviously protected as our political opinion regarding a well-known public figure.
22. Mr. Walker does not seem to understand that freedom of speech allows rhetorical characterizations of Dr. Brigham’s handiwork, such as calling it the “bible” for insurance company doctors out to hurt injured workers. But in retrospect, we apologize to our religious friends. Dr. Brigham’s work has nothing in common with the teachings of the bible.
23. On the other hand, our rhetorical reference to Dr. Brigham making a “deal with the devil” seems apropos. But since Walker claims, emphatically, that Dr. Brigham “has entered into no ‘deal’ with the devil,” we will take him at his word. From now on, readers should know we do not have any concrete evidence that Dr. Brigham actually made a “deal with the devil.” However, it remains our opinion that he is, consciously or unconsciously, doing the devil’s work and harming honest working people seeking fair compensation for their injuries.
24. We truly hope that it will be true, one day, that Dr. Bingham will no longer be an “insurance company fave,” but until then, we stand by our opinion.
27. We accept Walker’s criticism that the blog’s grammar can be improved. That being said, we agree with the opinion of Dr. John F. Burton that the AMA Guides are “hokum” and “not evidence based”, and therefore stand by our opinion that the Guides are “all about reducing” monetary compensation to injured workers.
28. When our blog referenced Dr. Brigham’s use of the term “abusive attorneys", it was in fact taken from the cover of Dr. Brigham’s seminar materials on the "How to Be an Effective Medical Witness" (click here to buy it on Amazon!), so we beg to differ with Walker’s denial that it represents his client’s characterization of workers’ lawyers. Certainly, such a characterization of attorneys as "abusive" could be considered false, inaccurate, libelous etc, but have we sent a similar letter to you or Dr. Brigham? Of course not. We accept that Dr. Brigham labeling us as “abusive attorneys” is his opinion entitled to legal protection. We simply ask that both Walker and Brigham afford us the same First Amendment protections.
29. We honestly believe that Dr. Brigham’s methods are “specious” and will harm workers. We will continue to defend our beliefs. We hold to our opinions.
30. Hmm…Walker catches us on the old “Guides” vs. “Guidelines” mistake again. We said “sorry” in #2 above. Our hands are getting tired. We may have to file a workers’ compensation claim for carpal tunnel syndrome for repetitive motion on our computer keyboard.
31. We believe that the Guides Dr. Brigham is proposing to implement for the State of New York will potentially result in a wholesale slashing of benefits to injured workers. It is well documented that the AMA Guides have resulted in lower benefits to injured workers in other states. Therefore, our opinion that Dr. Brigham is a “hatchet man” in this context would seem to be accurate. However, in the spirit of compromise and good will toward men, we will remove this reference immediately from the offending post as an appropriate gesture. We suppose no one likes to be called a “hatchet man”, and we have no desire to hurt Dr. Brigham’s feelings.
32. Walker is obviously unhappy that we said that the medical profession and the labor movement would eventually “crush” Dr. Brigham and his cohorts. But to call it a threatened “assault” is absurd. Pleeeeeeeeease! Has Walker never heard of a “metaphor”?
33.We are sorry to hear that Dr. Brigham has neither a Hawaiian “bungalow or coconuts”. Does he live in a tent on the beach? Is there a shortage of coconuts?!
34.We reiterate our view that the Guides are biased See also responses to #’s 2, 5, 6, 7 above.
35. We apologize for not clarifying that Dr. Brigham is not of Hawaiian origin and that he simply resides in Hawaii. We can understand how this would be an issue of importance to all those who are proud of their Hawaiian origin. We apologize to all the people of Hawaii, and will remove this slight immediately.
Note to Phil Walker, Esq.:
Please accept this as our respectful response to your letter of April 25, 2008. We will continue to protect injured workers in New York State. Please direct any and all future correspondence regarding this issue to our legal counsel, Meyer, Suozzi, English & Klein, P.C.
The New York Workers’ Compensation Alliance Blog