Constitutionality of California Workers' Compensation 'Penalty Loop Hole' Challenged in U.S. Court of Appeals for the Ninth Circuit Briefing

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Advocates for handicapped, disabled injured workers claim that 30,000 Californians are living with unnecessary pain.

Briefing papers filed in the U.S. Court of Appeals for the Ninth Circuit have challenged what is called a "penalty loop hole" in the California workers' compensation system claims registered nurse Barbara Clark (see case no. U.S.C.A. Ninth Cir. 06-16333, Clark v. Rea). Clark is suing John Rea, the acting director of the California Department of Industrial Relations.

"By the department's own estimates, 30,000 Californians are unfairly being denied medical treatment due to a penalty loop-hole created by Senate Bill 899," said Clark. "This loop-hole allows self-insured employers to ignore medical treatment requests without facing a penalty for such actions," she said.

Clark's briefing papers cite the fundamental right to pain avoidance as a protected right under the U.S. Constitution. She claims it was this right that influenced opinions in cases related to the rights of terminally ill patients to seek physician-assisted suicide, women to seek abortions, and the medical marijuana community to use cannabis for the treatment of chronic pain.

"The Governor's new plan to create a $12 billion state bureaucracy to care for uninsured employees should be viewed with skepticism," according to activist Larry Nign, who was the subject of a documentary in 2005 known as "Almost Broken."

"The Governor needs to stop the needless pain and suffering of these 30,000 injured Californians before we start talking about another new state program that promises benefits, but fails to deliver," Nign said.

Copies of the Ninth Circuit pleading are available at the following web sites. , ,

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