By all accounts, the summer of 2006 has been a scorcher. Record heat baking the entire state has caused alarm from San Diego to Redding. But the real cooking has occurred in Sacramento, where the California Applicants’ Attorneys Association (CAAA) continues to explore new ways of moving from the frying pan into the fire.
First, it was the gaffe in June backing Assemblyman Tom Umberg in the Democratic primary election in the 34th Senate District against Senate President Pro Tem Don Perata’s successful candidate, Lou Correa. But that was a mere appetizer for what was coming in July.
Cybersecurity experts warn us that one of the reasons email can be so, dare we say, compromising, is that people treat it as verbal communication. Consequently, individuals email comments that never would find their way into a formal letter but might be overheard at Starbucks or perhaps a CAAA convention. Such was likely the case last month, when the now-infamous email by applicants’ attorney Lawrence Stern was brought to the public’s attention. In colorful terms, Stern caused to be distributed to the forensic doctor (AME) community an email stating, in part, that CAAA had taken a “pact” not to support any doctor who had not contributed at least $2,500 to the campaign to defeat Governor Schwarzenegger. The email showed it had been copied to much of the leadership of CAAA.
That tasty little bit of hard evidence pretty much confirms the so-called “pact” even if it wouldn’t serve to obtain a set of conspiracy convictions.
It didn’t take too long for the email to get into the hands of the business community and, shortly thereafter, those of us in the trade press. It was the functional equivalent of a Connie “just between us” Chung interview. Yes, Mr. Stern, the whole world was indeed listening. The business community was outraged and sent a letter to Attorney General Bill Lockyer and Acting DWC Administrative Director Carrie Nevans to investigate. By late July, the DWC had issued a warning against coercing evaluators, citing “…a recent email written by a member of the California Applicants’ Attorneys Association (CAAA) board of governors.”
CAAA quickly denied any institutional involvement with the message—sent on June 26—and promptly proceeded to toss its own Mr. Stern under the bus. It would be easy to suggest that CAAA protesteth a wee bit too much, given the text of the offending email and its recipients, unless one is to assume that its author took license of such enormous, unprecedented magnitude and that never, ever, were such sentiments ever expressed anytime, anywhere, in any way by a CAAA member to members of the medical evaluator community.
But the uniqueness of this controversy may well be more about the medium than the message. In other words, this time it was in writing and the writing left no doubts.
Regardless of the outcome of the investigation, that distinction simultaneously serves and disserves the workers’ compensation community. The DWC and the Attorney General’s Office should follow through on calls by the business community for an investigation. But any such investigation should not end with the “smoking email” and the circumstances leading up to Mr. Stern hitting the send button. What CAAA has done by distancing itself from its member’s comments is to draw even more attention to the dynamics of the seldom-seen relationship between evaluators and attorneys. That relationship warrants even greater scrutiny—and regardless of whether the attorney is for the defense or the applicant.
Further, as members of the then “Big I” (now IBAWest) found out a few years ago, encouraging its members, as a group, to do or not do business with specific carriers could be considered a violation of the antitrust laws.
Although the insurance industry will use this event to call for establishing a process where evaluators’ livelihoods do not directly depend on currying favor with attorneys, especially if that favor corrupts not only the evaluation process but the democratic process itself, perhaps it should look in the mirror.
When January rolls around, dealing with the fallout from this one particular email should be at the top of the list, they will insist.
On the other hand, perhaps we need to realize that people are people and what people do is what people do despite laws to the contrary. Don’t we have the right to choose to do business with those we are politically simpatico with? Should the brokers have the right to protest unfairness—or perceived unfairness—on the part of carriers as a group? Shouldn’t applicants’ attorneys have the right not to do business with doctors whose political agenda is different? Shouldn’t an employer be allowed to hire people of similar minds? Or should the government try to create a fair society no matter what?
What Mr. Stern did with or without the CAAA may or may not be morally repugnant. It may even have violated any one of various laws. But somehow, laws aside, and remembering that CAAA is on the other side of this publication’s stance on most issues, is what CAAA did so different from what every other association or special interest so frequently does?
Perhaps Mr. Stern’s mistake was to be honest and aboveboard about it.