The shaky New York workers' compensation group self-insured trusts (GSITs) financial woes have grown exponentially in magnitude within the workers’ compensation market like the national sub-prime mortgage debacle.  And injured workers are at immediate risk!

You may recall that the former Governor Eliot Spitzer issued a budget amendment for $55 million in bonds to cover the then estimated liabilities to injured workers of failed GSITs. Subsequently, Workers' Compensation Board (WCB) Chairman  Zachary Weiss ordered, pursuant to law, assessments against remaining GSITs to pay for those liabilities. By then, the liabilities were measured at $78 to $80 million by the WCB. Some are now estimating that the number will approach $100 million as other GSITs are reviewed for financial stability.

Worse, the word on the street in Albany indicate that the Workers' Compensation Board's ability to meet indemnity and medical obligations to thousands of injured workers will be exhausted in as little as three months. 

Who and how will those injured workers be protected? Who will pay their mortgages?  Will they suffer in pain without necessary treatment and prescriptions?  Will their once temporary disabilities become permanent and career ending?

First Cardinal, a Third Party Administrator for a collection of GSITs, secured an injunction against Weiss in assessing the liabilities. Ironically, the injunction permitted the assessments to support the Board’s operations while staying those assessments that were intended to pay for injured workers. That injunction has now been appealed and we await the outcome.  In addition, the New York Ste AFL-CIO is attempting to intervene as an interested party to protect their membership from this potential catastrophe.

Albany legislators need to pay attention to this dangerous crisis.  If they can appropriate funds for the Baseball Hall of Fame ($500,000),  they should protect the thousands of injured workers who vote in their districts? 

A reading of the WCB Memorandum of Law in support of its assessments indicates that WCB Chairman Zachary “Trust-buster” Weiss has correctly read the statutes and and is acting to protect injured workers pursuant to the 2007 reforms concerning the authority of the WCB over the GSITs.   Chairman Weiss is to be applauded for confronting this issue with vigor and protecting the benefits of injured workers.  Bully!

Stay tuned for future developments.

Blogs are the new paradigm for open communication and opinion on the Internet.  As such, whenever the New York Workers' Compensation Alliance posts it's opinions on this blog, readers are permitted to "comment" on that particular post.  Recently, we posted a blog post entitled "AMA Guides Guru Tries to Intimidate and Silence the Workers' Compensation Alliance's Protected Political Speech".  This was based upon a letter threatening a libel action we received from Phil Walker, Esq on behalf of himself and Dr. Christopher Brigham.

Dr. Christopher Brigham, the above-mentioned guru, has recently replied to our post and his "comment" (and a link to his website)  are now permanently part of the archives of this blog.  The tone of Dr. Brigham's letter, apparently sent with the consent of his sometimes partner, Phil Walker,Esq., is far different than the accusatory and intimidating letter previously sent by Mr. Walker on their behalf.  In fact, it might be labeled even "gracious" and can be read as an "olive branch" to the New York Workers' Compensation Alliance.

In that spirit, Dr. Brigham, please accept this as our respectful response:

Dear Dr. Brigham,

We thank you for offering to provide our Alliance members with a live training seminar to better learn about the AMA Guides to the Evaluation of Permanent Impairment.   However, the Alliance has a firm grasp on the inadequacies of the AMA Guides and we believe it is these inadequacies which led the State of New York Insurance Department to reject the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment and cancel your contract to apply them at our Workers' Compensation Board. 

However, we do believe that a debate over the unfairness of the AMA Guides to injured workers is long overdue.  Therefore, we respectfully suggest a Lincoln/Douglas style debate as pictured above between yourself and workers' compensation expert, Dr. John Burton, who has labeled the Guides as "hokum" and 'not evidence based".  This debate could be held at the Alliance's upcoming Fall meeting in Albany, New York.  Please let us know if you would be interested, and if so, we will contact Dr. Burton.  Until then, thank you for your generous offer and your opinions on the matter. This blog will always be a forum for differing opinions on matters of public concern to injured workers. We respect your right to your opinion, as evidenced by our publishing your 4/23/08 letter above.

Sincerely,

The New York Workers' Compensation Alliance

As we correctly predicted a few weeks ago, the AMA Guides were rejected by the New York State Insurance Department as a basis for determining impairment and/or disability in claims before the New York Workers' Compensation Board.  We believe that the State Insurance Department has asked Dr. Christopher Brigham to stop work on his $162,500 contract to bring AMA Guides to New York. Hopefully, this will start a trend in other states to banish these hurtful Guides that have been labeled "hokum" and "not evidence based" by renowned workers' compensation expert, Dr. John Burton.

However, the ill conceived detour toward the AMA Guides has left the New York State Workers' Compensation system in crisis.  The workers' compensation "deforms" pushed through by former Governor Eliot Spitzer are now over one year old.  Despite substantial changes in the law imposing "caps" on permanent partial disabilities based upon certain percentage ranges of "disability", judges, injured workers, medical providers and insurance carriers still have no guidance on how to evaluate medical impairment under the new law.  Precious time has been wasted during New York's Brigham courtship.

The New York Workers' Compensation Alliance, speaking for over 150,000 injured union and non-union workers in New York, urges Workers' Compensation Board Chairman Zachary Weiss to immediately appoint a full time Medical Director for the Board.  This Medical Director can then assemble a distinguished panel of New York doctors and other health professionals to quickly update the existing 1996 Medical Guidelines.  A firm deadline should be set (perhaps 90 days) to have the updated guidelines in place.  This will lessen the looming crisis where none of the the stakeholders in the system know how to implement the "deform" laws passed last year.

The Workers' Compensation Alliance wishes to thank all its loyal members and friends who helped us successfully fight the imposition of AMA Guides in New York.  There is strength in numbers and solidarity.  The Alliance is in the process of building new bridges to other organizations that share our belief that injured workers deserve fair benefits in New York.  Unfortunately, the ranks of injured workers are growing, but the New York Workers'' Compensation Alliance is ready to use our collective voice to elect those who share our beliefs. 

For now, let us bask in our most recent victory banishing the AMA Guides from New York, while remembering that there are many battles yet to be fought - and won! 

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.

17. Ditto.

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.

25. Our opinions about ACOEM and Dr. Bingham are well documented in our blogs and elsewhere.

26. Ditto.

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.

Love,

The New York Workers’ Compensation Alliance Blog

When John Burton talks on workers' compensation, people listen!  He is the former Dean of the School of Management and Labor Relations at Rutgers University, and before that was a full Professor at both Cornell's School of Industrial & Labor Relations and the University of Chicago (the Alma Mater of our own Workers' Compensation Board Chairman, Zachary Weiss).  Importantly, he was also the Chairman of the National Commission on State Workers' Compensation Laws and his newsletter is required reading for the top experts in the industry.

During his speech to the Workers' Compensation Board, Prof. Burton implored New York State policy makers to "do it right" and craft medical guidelines that adequately address "loss of earning capacity" rather than just "impairment".  He said this process could take a few years and would probably require the appointment of a special commission by Governor Patterson for this purpose. 

Prof. Burton specifically approved of Section 15 (3) v - an underused provision of the current New York law which survived the reforms of last year.  Section 15 (3) v allows a claimant to petition for additional cash benefits after his original "scheduled award" runs out, if he can show an ongoing causally related loss of earnings. 

Give substantial credit to Workers' Compensation Board Chairman Zachary Weiss for inviting Professor Burton to shed light on the current AMA Guides debate in New York.  On a number of issues (the self-insured trusts scandal, the crane accident rapid response team) -  we are learning that Chairman Weiss is most interested in good policy to protect injured workers, and is willing to stand up to political pressure to "do the right thing".

Given Prof. Burton's even handed and scholarly presentation to the New York Workers' Compensation Board, it is unlikely Bruce Topman and the State Insurance Department can ever resurrect even "AMA-like" guidelines  in New York.  In fact, Prof. Burton suggests revamping the current objective 1996 Medical Guidelines for the time being.  The New York AFL-CIO is meeting with Mr. Topman and his boss, Eric Dinallo, on April 30th to discuss medical guidelines.  We will report back on this issue then.  Stay tuned...

Amid growing opposition to the AMA Guidelines to Permanent Impairment in a multitude of states across the country ( see the excellent blog post from our distinguished New Jersey colleague, Jon Gelman, Esq.  here), the New York Workers' Compensation Alliance can safely predict that the Sixth Edition of the AMA Guides are totally, unequivocally, 100% dead as a door nail in New York.  You can take that to the undertaker!

Good riddance to Bruce Topman and the New York State Insurance Department who tried to sneak this one past the AFL-CIO and our Alliance.  We only wish we had caught them sooner before they  wasted $163,000 of taxpayer money hiring insurance company hack, Dr. Christopher Brigham.  In addition, there is a move afoot by New York Injured Workers' Bar Association President, Barbara Levine, to ask the American Medical Association to remove their support for this anti-worker and anti-doctor publication.  She has written to the current AMA President asking that this prestigious organization remove its imprimatur from this anti-patient document.  Congrats to Barbara and the entire IWBA for their initiative on this issue!

Interestingly, Mr. Topman and his boss, Eric Dinallo, have been nowhere to be seen on this issue since the Spitzer scandal and have canceled multiple meetings with the AFL-CIO to discuss where to go from here to implement fair medical guidelines. 

The bottom line is that the New York Workers' Compensation System is now in a complete state of chaos.   Former Governor Spitzer pushed through his anti-worker reforms over a year ago and established an awkward rating scale for permanent partial disabilities which was tied to a presumed promulgation of new medical guidelines.    Because of Mr. Topman's wrong turn detour down the AMA road, New York workers, lawyers, insurance carriers, employers and judges now have a reform law that is impossible to implement!   The only fix is a revision of the existing 1996 Medical Guidelines by a distinguished panel of fair New York doctors.

Essentially, Judges at the New York Workers' Compensation Board are being asked to play a new game with the same old playbook.  Workers' Compensation Board members, many of whom are lay people holdovers from the Pataki administration, will now be interpreting the disgraced former Governor Spitzer's reform law.  It will be "bedlam times 10" unless new Governor David Patterson and his senior staff take control of the situation - and fast!

In an effort to assist the new Governor and his senior staff in fixing this broken system with all deliberate speed, the New York Injured Workers' Bar Association recently issued a draft of its 2008 Legislative Proposals to fix the mess created in the last year.  They are even-handed proposals that restore the "worker" element to the New York State Workers' Compensation Law (which many had mockingly started to call the "New York State Employers' Compensation Law" ).   The new Governor and his senior staff could ameliorate some of the damage caused in the last year by carefully reviewing and implementing some of these proposals. Here they are:

1. Amend WCL to correct effective date to July 1, 2007 for dates of accident from 3/13/07 to 6/30/07

2. Eliminate “caps” upon expiration as cost-shifting tax burden from employers and carriers to NYS

3. Reduce from 80% to 40% threshold for application for lifetime indemnity

4. Appointment( s) of a more diverse Workers’ Compensation Board to include representatives from labor and minority communities

5. Emergency creation of a panel of NYS medical professionals to revise 1996 Medical Guidelines regarding permanency

6. Adoption of regulation authorizing attorney fees in “medical only” claims

7. Elimination of HIPAA release filing with C-3

8. Amend WCL Sec. 29 language to clarify attorney responsibility for securing consent to third party action and negotiating apportionment of costs

9. Amend NYCR&R Sec 325-1.3(b)(3) to extend from 22 days to 90 days submission of current medical reports from a treating physician

10. Amend WCL Sec 15.5-a to include a presumption that receipt and/or award of Social Security disability benefits is prima facie evidence of total disability and such benefits are not subject to offset against workers’ compensation indemnity payments

11. Support passage of S.6325 requiring mandatory ATF deposits by SIEs and SIF

12. Amend WCL 13(a) to specify the right of an injured worker to continuing, symptomatic medical care and treatment in all claims

13. Amend WCL Sec 23 to make the WCB liable for costs and attorney fees upon reversal of a Board Panel decision following submission of a perfected record to the appellate court

14. Seek restoral of the participation of the NYS Attorney General in review of appeals for Full Board Review and to the appellate division

15. Amend appropriate sections of the WCL to restore claimant choice of provider

16. Create participation procedure for attorney professional evaluation of WCLJs

17. Advocate mandatory annual CLE for licensed representatives

18. Amend the WCL to provide for a “whistle blower” protection for employees and employers who provide information concerning workers’ compensation fraud, especially failure to carry coverage and mis-classification of employees

19. Amend NYCRR section 325-1.24(c)( 1) to require payment of a medical bill within 30 (currently reads 45) days after the bill has bee submitted.

20. Amend WCL section 16 to modify the offset for Social Security Survivor’s Benefits. Section 16 (1-c) applies to accidents after July 1, 1978. Two hundred dollars (the AWW at which compensation benefits are reduced by 50%) in 1978 was worth $615.00 in 2006 using the Consumer Price Index.

What a difference one year makes.  On March 13, 2007,  former Governor Eliot Spitzer bullied and pushed through some of the most anti-labor workers' compensation reforms in the history of the New York Workers' Compensation Law.  As conceded by his own former administration, over 750 million dollars were taken out of the pockets of struggling injured workers and their families.   And why would a liberal New York Governor known for crusading against insurance companies give big business such a big, wet kiss at the expense of injured workers? 

One commentator has suggested that someone at the Business Council of New York State may have had Eliot's number long before the US Attorney did.  Far fetched?  Maybe, but who would have bet two weeks ago that Eliot Spitzer, of all people, would have been brought down in disgrace by criminal, unethical and immoral conduct? 

That's why it was so refreshing to watch new Governor David Patterson's first address live on CNN's Internet streaming video this afternoon.   When he boldly announced, "Let me re-introduce myself - my name is David Patterson and I am the Governor of New York!", it was with a sense of pride and excitement - shared by all in attendace and viewing from afar.  His address was serious without being somber, humorous without being light-weight , and most importantly, stressed "public service" rather than "politics".  His story about, and imitation of, Shelly Silver, Speaker of the Assembly,  preventing  the new Governor's gavel from turning a legislative session into a Jewish wedding was hilarious and self-deprecating at the same time.  No wonder legislators on both sides of the aisle like this guy!  As we said, what a difference one year makes.

So what does a Governor Patterson administration mean for injured workers?    Well, first, lets remember that David Patterson is the son of one of New York's most respected labor-side mover and shakers, former New York Secretary of State, Basil Patterson.  Basil Patterson has a long relationship with Local 1199/SEIU, the historically progressive and always powerful NYC health care workers union, made up of largely of lower wage minorities. (Full Disclosure - the Workers' Compensation Alliance's long-time Counsel, Richard Winsten, is Basil Patterson's partner at the politically astute law firm of Meyer Suozzi English & Klein) . 

But it goes far deeper than that.   Governor David Patterson was raised in the atmosphere of, and operates comfortably in, the politics of his father's generation and the Harlem political scene.  The dignitaries present at his swearing in today were a "who's who" of a different element of the Democratic party than those recognized in the former Spitzer administration.  Besides his father, Gov. Patterson recognized , among others, former NYC Mayor David Dinkins, former State Comptroller Carl McCall, former Governor Hugh Carey, former Mayor Ed Koch and Senator Chuck Schumer, sometimes to thunderous applause.  Had it not been for a severe cold, the old sly fox and Washington power broker, Congressman Charlie Rangel, would have been their also.  Even Senator Hillary Clinton took a day off the campaign trail to be present.  Even if it was just for nostalgic purposes, a resurgence of the old democratic guard was on display.  Many of Spitzer's former top aides and agency heads are already on the way out of State government. Expect them to be replaced by a greater percentage of minorities from backgrounds far different than Fifth Avenue and Princeton.

As the new Governor humbly acknowledged, he did not seek the Governorship of the great Empire State.  Yet here he is, and the New York Workers' Compensation Alliance warmly welcomes him with the hope that the most vulnerable among us - the injured and disabled - have an empathetic friend who, more than some others, understands both their plight and their dreams.

Thanks to the NY Times for reporting in today's edition (see article excerpt below) about the New York State Insurance Department's secret attempt to hire one of the most anti-worker insurance company hack doctors in America to implement new disability guidelines in New York's Workers' Compensation system.  Obviously, the NY Workers' Compensation Alliance's posts got the ear of the "Gray Lady", and the Times will continue to report on the far ranging ramifications of this under-handed maneuver by Eric Dinallo and the State Insurance Department. 

Besides picking a fight with the AFL-CIO, this move has stirred the New York State Trial Lawyers Association and influential medical societies throughout the state into action.  Speaking to Workers Comp Central recently, Art Wilcox of the NYS AFL-CIO described the the hiring of Dr. Brigham as "Pearl Harbor".  If injured workers were seamen on the deck of the USS Arizona, the Insurance Department's attack dog on this issue, Bruce Topman, would be flying a Japanese "Zero"!

Read the text of the Time's story below:

Unions vs. Injury Expert

Labor leaders are up in arms over a new employee of Mr. Spitzer’s workers’ compensation task force, which in the coming weeks will release the details of his overhaul of the system that provides benefits for employees who are injured on the job or have work-related illnesses.

Last fall, the task force’s staff hired a well-known consultant and physician named Christopher R. Brigham to help formulate the new rules. That was a problem for the state’s powerful labor unions, because Dr. Brigham, who has offices in Maine, California and Hawaii, is also one of the country’s leading advisers to companies locked in legal disputes with workers over disability payments.

Union officials argued that Dr. Brigham’s system for evaluating workers’ injuries tended to favor lower payments than the system commonly accepted under New York labor law. They also fault the task force’s executive director, Bruce Topman, for hiring Dr. Brigham without first consulting members of the task force’s advisory committee.

“There’s been no detailed discussion on what he’s going to do, why he’s been hired, or anything else,” said Art Wilcox, an official with the state A.F.L.-C.I.O. who is on the advisory committee.

Dr. Brigham’s contract, for which his firm, Brigham Associates, will be paid $162,500, was finalized in early December.

“We didn’t know they were going to hire one of the world’s most famous defense witnesses, from Hawaii, and pay him $162,000 to push for a system that he makes money off of,” Mr. Wilcox complained.

Through a spokeswoman, Dr. Brigham declined to comment. Andrew Mais, a spokesman for the task force, said that Dr. Brigham’s hiring was appropriate and that he had disclosed to state officials any potential conflicts of interest.

“The Task Force sought to contract with an individual highly qualified for this important and specialized task,” Mr. Mais said.

The advisory committee, which includes representatives from business and labor, meets behind closed doors, which has rankled some outside groups.

NICHOLAS CONFESSORE

NY Workers' Compensation Alliance - "Protecting Injured Workers"

As a result of the Workers' Compensation Alliance's Freedom of Information request, we have discovered that the State Insurance Department requested an exemption from giving "notice" in the New York State Contract Reporter to award Dr. Christopher Brigham a "single source" contract (meaning no bids or requests for proposals) as early as September 19, 2007!  Read the attached proof here. 

This is a full two months prior to Bruce Topman allegedly disclosing this information to the full Medical Guidelines Task Force and four months before the entire fiasco became public.  Something smells  - badly!  But it gets worse!  In order to obtain this exemption for a "single source" contract,  it must be approved by the State Comptroller's office.   The procedures require the State Insurance Department to include in their request the "alternatives considered" to the single source contract.  As you can read in the above letter, the State Insurance Department never provided the Comptroller's office with any "alternatives considered" (such as the Wage Loss Data Institute or New York's own occupational health clinics) and therefore their request should not have been approved by the Comptroller's office. 

It appears clear that that Bruce Topman and the State Insurance Department wanted to "steamroll" Dr. Christopher Brigham down the throats of all the members of the Medical Guidelines Task Force and had been planning to do so at least since August of last year.  Of course, this is what the Business Council of New York State has wanted all along.  You connect the dots...

The process of developing new and fair medical guidelines for injured workers has been irretrievably damaged.  The only way to proceed now is to start from scratch with all Medical Guideline Task Force members fully engaged in an open process leading to fair guidelines which will not cut payments to injured workers any further than the "deform" workers' compensation legislation passed last March.  Perhaps then the stench will clear...

Unfortunately, based upon the attached letter from WLDI to Workers' Compensation Board Chairman Zachary Weiss (and cc'd to all member of the Workers' Compensation Board),  it appears that the Wage Loss Data Institute has been cut out of the process - and that the ODG evidenced-based guides are being ignored in New York in favor of the biased guides of Dr. Christopher Brigham.  See a copy of Dr. Brigham's $163,000.00 contract with the NY State Insurance Department here. It is a direct attack on New York Schedule loss of use awards.

Why are the State Insurance Department and the Workers' Compensation Board not considering the ODG Guidelines?  After all, the ODG Guides do not discriminate against orthopedic surgeons, chiropractors, physical therapists, etc.,  as detailed in the above letter to Chairman Weiss.  

In addition, why is the State Insurance Department and the Workers' Compensation Board not asking for input on these new guidelines from the experts employed directly by New York State, namely the Occupational Medicine doctors in the  state funded Occupational Health clinics?  Why is New York State "out-sourcing" jobs  to Dr. Brigham, who lives in Hawaii? As reported recently in WorkersCompCentral, the WCA will continue to fight the AMA Guides as unfair to injured workers.

It would seem that whatever medical guidelines are finally developed will require input and consideration from a wider range of medical professionals than the singularly biased, shameless Hawaiian IME, Dr. Christopher Brigham.  See his Hawaiian powerpoint presentation!

Thankfully, the original deadline set by Gov. Spitzer for the Medical Task Force Guidelines has long since past, so it appears that the State need not hurry to adopt any particular set of guidelines until all options are explored.  That's good news. As they say, haste makes waste... 

P.S:  At the request of Dr. Brigham, we apologize to all the residents of Hawaii for implying that he is of Hawaian origin.  He simply resides in Hawaii.  - WCA - 4/20/08

From an injured workers perspective, applying Brigham's AMA Guidelines to existing schedule loss of use awards in New York is both devastating financially and mean spirited.  As described in a previous post, Dr. Brigham would rate a torn medial meniscus with surgery as a one percent loss of use of the lower extremity!   The Workers' Compensation Board Chairman, Zachary Weiss, confirmed recently to the Long Island Federation of Labor that 3/4 of the purported one billion dollars saved by the recent workers' compensation reform legislation was taken out of injured workers pockets.  How much more does the NY State Insurance Department want from injured workers? 

At the same time, more damaging information on Dr. Christopher Brigham and his anti-worker bias is spilling out.   One well published scholar on California Workers' Compensation law has labeled him a "shameless self-promoter" who advertises his "services" to reduce benefits to injured workers.  These statements seem to be verified by counting his numerous tacky websites and his own promotional statements.  Anyone who wants a fair and objective analysis of the now tarnished "AMA Guidelines" should not look to Doc Brigham - who has a keen financial interest in their perpetuation. 

Perhaps it is time for Buffalo internist and AMA President-elect, Nancy H. Nielsen, MD, PhD to demand that the "AMA" imprimatur be removed from these biased guides.  Certainly, they only hurt her own patients.  For example,  did you know that an injured worker who was in a "persistent vegetative state" would not be rated 100% disabled under the AMA Guides?  That's right - a person in a "persistent vegetative state" might only be rated between 60%-90% disabled under the AMA Guides! 

That's why the New York Workers' Compensation Alliance has no problem labeling Doc Brigham's interpretation of the AMA Guidelines as "voodoo science".    His financial partner, the self described "gay Oprah", Phil Walker, Esq at the firm of Brigham Walker , has been fighting injured workers for years as a lawyer representing huge employers and insurance companies.  See Walker's bio below:

Phil Walker, Esquire is a Professional Speaker, Instructor, and National Trial Counsel for California Workers’ Compensation and Longshore defense in San Francisco, California. For over 20 years, he has represented California’s largest airlines, shipyards, steel companies, retailers, universities, and insurers in workers’ compensation and Longshore matters. He has served as House Counsel for US Steel; General Counsel for New York City’s largest residential real estate firm—Douglas Elliman; and Managing Attorney for Fireman’s Fund Insurance Company.

He is Speaker, Trial Counsel, and Longshore Head for Adelson, Testan, Brundo & Popalardo in San Francisco. He is a member of the Bars of California, New York, and the District of Columbia. He was educated at Vanderbilt University and Washington & Lee Law School. Mr. Walker as been a national Legal Columnist for Genre Magazine, host of his own television show in San Francisco, and appeared as “the Clerk of Court” with Gene Hackman in Class Action. 

We encourage the AMA's eminent Dr. Nielsen to consider removing the AMA imprimatur from these scientifically flawed guides - which are really nothing more than tools for the insurance industry to hurt patients financially.  We also encourage the State Insurance Department to drop this poor excuse for a vaudeville act (Brigham Walker) from any role in determining the financial future of injured workers in New York.  We will report further on the AMA's and the Insurance Department's action, reaction and/or inaction.  Don't they have bigger fish to fry? Apparently, Attorney General Andrew Cuomo does. Stay tuned...

Now, Bruce Topman, Eric Dinallo's representative on the Committee, is telling people who want to attend the next meeting as observers, that the meeting is a "closed meeting" and they will not be allowed to attend.   May we respectfully suggest that Mr. Topman, a lawyer himself, re-read the New York Open Meetings Law.  Clearly, this is a "meeting" as defined in the Open Meeting Law and is open to the public.  Anyone can and should attend, despite Mr. Topman's discouragement.

The more interesting question is why Bruce Topman is choosing to keep the Advisory Committee's business secret?  Is it because he will have a hard time justifying how he unilaterally wasted $162,500 of the taxpayers money to bring in the biased Christopher Brigham, MD and his discredited AMA Guidelines as reported yesterday at WorkersComp Central.  Or does he believe he is simply above the law?  We will see tomorrow when members of the interested "public" show up at the Advisory Committee meeting.  Stay tuned...

Unfortunately, Mr. Topman's job performance to date has been dreadful.  His "Rocket Docket" Task Force conclusions have been roundly criticized by insurance companies, injured workers' advocates and  Workers' Compensation Law Judge's as unworkable at best.   Now, he has breached the confidence of the entire Medical Guidelines Task Force by secretly hiring the well known insurance company biased Dr. Christopher Brigham to implement the anti-worker AMA Guidelines for Permanent Impairment in New York.  It would seem that Mr. Topman is now doing the bidding for the Business Council of New York State - not its citizens.

Did you know that the American Medical Association itself has fought the State of Texas for using the AMA Guides inappropriately? See the AMA's legal brief here.  Although the AMA Guidelines are touted as being "'objective" by business and the insurance industry, what they really are a tool to lower cash awards for permanent injuries to injured workers. Ask any advocate for injured workers in other states where they have been implemented, and they will tell you AMA Guides lower cash awards for permanent injuries to injured workers.  See Dr. Brigham's article in "For the Defense" here. After all, if they lowered awards to workers, would insurance companies really push for them?  Of course not! 

Mr. Topman has a lot of explaining to do about his secret deal with Dr. Brigham at the next meeting of the task force this Friday in New York City.  Since this is an "open meeting" under the New York State Open Meetings Law, the WCA and the Injured Workers' Bar Association of New York will be sending observers to hear Mr. Topman's explanation of his actions and we will report back here.  Stay tuned...there may be a Minority Task Force Report.

 A potential war between injured workers and the New York State Insurance Department is on the horizon!  During the recent workers' compensation reform negotiations, all the negotiators from the Governor's office, Speaker Silver's office and Senate Majority Leader Bruno's office  promised that "AMA Guidelines will never come to NY!".  Well, word on the street is that the Governor's man heading the Medical Guidelines Task Force just hired Dr. Christopher Brigham, the insurance and defense industry's best friend, to implement the AMA guidelines in New York.   

A little about Dr. Christopher R. Brigham.  He is an entrepreneur with numerous sophisticated websites selling his IME services, click here, here, here for a few of the "classier" ones. He hangs out in Hawaii and peddles his new "Sixth Edition of the AMA  Guidelines to Evaluation of Permanent Impairment" in a nice little cottage industry he has carved out for himself and his family (Mindy Brigham is "Director of Marketing").  Go to his website - you can fill up your "Cart"!  Somehow,  he duped the AMA into buying into his biased opinions on "impairment ratings", much to the embarrassment of the AMA. The fact is that he is an injured worker's "worst nightmare IME" (insurance company medical examiner).  He is the proud author of  "Symptom Magnification, Deception and Malingering", the bible for all insurance company doctors out to hurt injured workers. 

Dr. Brigham still performs insurance company medical exams in Hawaii (nice work if you can get it, assuming you are willing to make a deal with the Devil).  Check out this "sample Brigham IME report" of his regarding an injured worker who had surgery for "cubital tunnel syndrome" on his dominant left arm.  Despite a 10 centimeter scar on the worker's right elbow, insurance company fave Dr. Brigham opines that the worker has a " 2 percent impairment to the Hand!" .  I kid you not!  Dr. Brigham also does live "webinars" for ACOEM, the discredited organization which represents primarily the interests of industry and insurance companies.

Under the current objective New York Workers' Compensation Guidelines of 1996, this serious injury would appropriately translate into at least a 15-20% schedule loss of use to the "Arm".  This tells you everything you need to know about the AMA Guides and Dr. Brigham - it all about reducing compensation monetary to injured workers awards!  See this press release from Dr. Brigham about insurance companies saving money using his methods.  See his article from "For The Defense" (a pro-worker publication...) here.

Dr. Christopher Brigham is one sharp expert witness.  His tape, "How to Be An Effective Medical Witness"  (see below) teaches insurance company doctors to "properly state your opinion using 'magic' legal words", "humanize your testimony", "deal with trick questions and trial tactics of attorneys", "answer questions about your fee" and "deal with an abusive attorney".   I hope none of us "abusive attorneys" run across the good doctor while strolling the white sands of Hawaii - he knows how to "deal with us"! 

In a recent Internet radio interview, Dr. Brigham stated that the new "6th Edition of the AMA Guides" would lower impairment ratings from prior editions of the Guides.  He gave an example of his own "partial medial menistectomy" knee surgery.  Quite generously, Dr. Brigham gave himself a "one percent impairment" to the lower extremity. Again, under current New York Medical Guidelines, such an injury would result in at least a 15% loss of use.  Using Dr. Brigham's specious methods, an injured worker in New York would lose  tens of thousands of dollars.  But, then again, remember that the AMA Guidelines as written By Dr. Brigham are all about saving insurance companies money - not about credible medicine. 

The best example of this is the startling fact that the purported "big accomplishment" of the "Sixth Edition" is that they will no longer use "range of motion" in determining impairment!  Are they serious?  Tell that to the treating orthopedic surgeons and chiropractors in New York - Brigham will be laughed all the way back to Hawaii. 

Bottom Line -  AMA Guidelines in New York is a non-starter. The Governor's team is too smart  to bring in a biased "defense medical examiner"  like Dr. Brigham to mess with the New York Workers' Compensation Medical Guidelines.  It would be another drivers' license-like albatross for the Governor Spitzer.  Just look at what recently happened in South Carolina when the Governor  there tried to implement AMA Guidelines. The medical profession and labor movement in New York would crush Dr. Brigham and his co-horts, and find allies in both the NY Assembly and the Senate in doing so.  The WCA suggests that the good doctor remain in his Hawaiian bungalow counting his numerous coconuts.  Stay tuned...

For these reasons, the New York Workers' Compensation Alliance must remain vigilant in defending the rights of injured workers in 2008.  We are working closely with with both the new Chairman of the Workers' Compensation Board, Hon. Zachary Weiss, and our friends in both the State Assembly and the State Senate to protect the due process rights of injured workers.   Chairman Weiss will be speaking at our upcoming meeting in New York City. Our  Legislative Counsel, Richard Winsten, Esq., continues to work tirelessly on our behalf in the corridors and back rooms of the capitol in Albany.

Please download the attached 2008 WCA Membership Application and Key-person form and join the WCA's fight to protect injured workers.  As you can imagine, their are substantial costs to have our  voices heard in Albany.  The entire Board of Governors of the WCA serve voluntarily and without any remuneration.  Our costs are primarily related to supporting our legislative counsel and contributing to candidates that share our belief that injured workers deserve swift and fair compensation and medical care, in addition to to a hearing upon request at the Workers' Compensation Board. 

Please  consider joining the WCA today and return to this site for future legislative updates.  If you have any questions regarding membership or other activities of the Workers' Compensation Alliance, please call Co-Chairs John Sciortino (585-455-1015) or Troy Rosasco (631-582-3700 x123).  Thank  you.