Dear Gromlily -

I speak as a California attorney now on “voluntary inactive status” due to my RSD. However, because I have taken inactive status, I neither am required to take continuing education classes, nor am I able to give any form of legal advice, so please consider what follows to be more "political science" than anything else.

Essentially, the present crisis was the product of a couple of deals. The first, part of the deal gave employees guaranteed protection from financial ruin arising out of disabling injuries incurred at work, through the medical services and long-term income support paid for by insurance which the state's employers were required to buy. In return, employers received protection/immunity from any claims of negligence arising from on the job injuries. Workers' compensation laws were enacted to make litigation less costly for both sides and to eliminate the need for injured workers to prove their injuries were the employer's “fault.” (The first state law was passed in Maryland in 1902, and the first law covering federal employees was passed in 1906. By 1949, all states had enacted some kind of workers' compensation regime.)

Now fast-forward maybe 80 years and the “bankruptcy” of the California worker’s comp. system, brought about largely by specialized “industrial medicine” clinics which didn’t bat an eye about putting anyone who walked the door on 5 years of PT. Anyhow, after an initial series of reforms forced most of these bad actors out of the system, the insurance carriers had no incentive to reduce their rates, because they were making profits for the first time in quite a while. And workers comp. insurance in California continued to be unbelievably expensive.

Into this situation walks The Terminator, who uses his political capital – then at it’s zenith – to force a “reform” aimed solely a limiting benefits, and along the way specifies two conditions, RSD and fibromyalgia, on which no claims will ever be paid because some claimants and their docs had gotten good at faking injuries and there often wasn’t any “objective medical evidence” in support of the claims, notwithstanding the fact that many people with RSD could present absolutely uncontroverted evidence pointing uniquely to a diagnosis of RSD. (As in please, don’t confuse me with the facts.)

Here’s where I throw something out for anyone who was injured on the job to raise with your attorney: consider suing your (former) employer for negligence (if in fact the employere was negligent in allowing an unsafe condition to exist at the work place) on the theory that the statute granting immunity to employers for work related injuries is an unconstitutional “taking” in violation of the 5th Amendment of the U.S. Constitution, where, thanks to the later-day reform of workers comp. no remedy whatsoever exists for an injured worker who develops RSD. Hence, there is a “taking” of property (your right to be made whole) without “just compensation.”

Three words of warning are, however, in order:

(1) I have yet to hear of any court in California adopting such a theory, although I don’t know how many times people have tried to raise it, and frankly I done any legal research on the question either;

(2) Worker’s comp. lawyers are not, by nature, the most creative of folk, adept at fashioning new remedies - their mantra is VOLUME, VOLUME, VOLUME - nor is the Workers' Compensation Appeals Board known for its level of intellectual engagement; and

(3) Personal injury negligence claims are lawsuits with a relatively short statute of limitations, usually 1 year from the date of the initial injury.

All of which suggest to me that the people with the best chance of doing something about the situation are those folks who are able to interest an aggressive P.I. lawyer to pursue a lawsuit against an employer, within one year of the date of the initial injury. Short of that, there may be a worker's comp. lawyer out there willing to challenge the statutory exclusion of RSD from covered conditions, but that lawyer would probably have to wade through years of unproductive appeals before s/he could finally be in front of a court which could hear the constitutional challenge by way of what is called "administrative mandamus" of the Workers' Compensation Appeals Board decision. (This could explain some of the difficulties you have had retaining/obtaining representation on your claim.)

Bottom line: I think the only realistic place for finding a sympathetic ear is in the California Courts of Appeal on a constitutional claim. Especially where our legislature is one giant brothel, open 24/7 to the highest bidder. That, or maybe, just maybe, you're right and Arnold can be made to see the error of his ways. One can only hope.

So may the Force be with you.

Mike