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Thread Title: WCAB en banc decisions of Rebuttal to PDRS
Created On Tuesday February 03, 2009 5:22 PM


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jakelast@aol.com
Senior Member

Posts: 1024
Joined: Jun 2002

Tuesday February 03, 2009 5:22 PM

The wild wild west returns to the PD rating system. Check out the 2 en banc decisons by the WCAB o rebuttal to the AMA guides and the FEC

Text

This should generate a few posts over the next few months...

Jake Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

Posts: 22
Joined: Mar 2006

Tuesday February 03, 2009 5:27 PM

Jake, your link is bad. Can you try again?

Kelly

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jakelast@aol.com
Senior Member

Posts: 1024
Joined: Jun 2002

Tuesday February 03, 2009 5:51 PM

Try pasting to your browser:

http://www.dir.ca.gov/WCAB/wcab_enbanc.htm

The two most recent cases are right there.

Jake

Posts: 22
Joined: Mar 2006

Tuesday February 03, 2009 5:52 PM

That worked. The other one wasn't linking properly. Thanks!

Posts: 180
Joined: Jun 2004

Tuesday February 03, 2009 6:30 PM

Almaraz and Guzman are stunning, in my opinion.
Having the ability to rebut the WPI based on factors as vague as inequity or not a fair and accurate measure of the true permanent disability opens the doors very, very wide on this critical issue..
The opinion seems to be equally stunning in the breadth of the inquiry to be undertaken for medical and factual discovery to rebut the WPI.
In my view, the future of PD ratings and LC 4660 is now on a very different landscape.
.

-------------------------
Bill Armstrong
Armstrong Law Firm

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Ozzie
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Posts: 430
Joined: Apr 2004

Tuesday February 03, 2009 6:45 PM

Wild, wild west indeed! Toss out the 2005 PDRS and the AMA Guides and don't waste time on doing a rating. May the files role in!

-------------------------
San Jose Dogman

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jakelast@aol.com
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Posts: 1024
Joined: Jun 2002

Tuesday February 03, 2009 7:06 PM

Bill:

I agree with yoru assessment. While Oligivie reads as a very complex decision, the math may end up being simple and not of much significance. However the companion cases, Almarez and Guzman, appear to potentially render the ama guides obsolute. The only way to keep the guides in play at all will be for the WCAB to carefully review each and every decision where a WCJ adopts the finding of a medical expert to maike up a new rating category and provide some serious criterion for going outside the schedule.

The language in the decision does not seem to very limiting though does it?

Jake Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

Posts: 180
Joined: Jun 2004

Tuesday February 03, 2009 7:39 PM

Some other thoughts:
1. The opinion is well written;
2. The WCAB Commissioners remained pretty consistent with past opinions and followed the legislation and judicial history carefully.
3. I don't read any type of judicial activism of any sort.
4. I don't read any type of personal bias or preference from the Commissioners.
5. I don't see they had a goal in mind and rationalized to reach it
6. In my view, the opinion is very scholarly, carefully researched and analytically honest.
While the result is not one I like to read, the more I have read the AMA guides, LC 4660, and opinions like Foote, Cortez and Kramer, the more I was concerned this result, or one like it, could be reached.
7. This is also the Board which provided us with Knight. In that opinion, they focused on the need, the mandate to have a record which contains evidence. They almost reminded the community that argument is not evidence and if you don't put evidence in the record, you will most certainly lose.
Some of that seems to be here when we see the opinions in evidence without cross examination on the conclusions.
8. I will choose to read this opinion in light of Knight and be persuaded that evidence will be a critical component of these decisions going foward. If you present evidence, your client will receive a fair result.
If you rely on argument and present little to no evidence, your client will not do well on these issues.

-------------------------
Bill Armstrong
Armstrong Law Firm

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7dayweekend@mindspring.com
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Posts: 422
Joined: Jun 2004

Tuesday February 03, 2009 9:39 PM

Wow. I mean wow.

So why even have the doctors use the AMA rating system?

Seriously, you may agree or disagree with this, but c'mon it is judicial activism. They basically threw out huge portions of 899 and told Arnie, the legislators and the AD to drop dead.

I think in the end they will regret this. They've brought back the 1980s. The language permits outside "boutique" opinions, and we may go back to dueling doctors. The political backlash will be intense during a recession, in a state that is perceived as very unfriendly to business. I wouldn't be surprised to see Arnie and even some Democrats banging the podium on this within the next couple months.

AMA is far from perfect, but you can't just blow it up and put fuzzy judicial concepts as a substitute for medical evidence.

The proper way to address the problems with the AMA Guides is to pass a bill codifying another guide and changing the PDRS.

From a patient advocate viewpoint, in the short term this is a good thing, in the long term a disaster.

In reading the particulars of the two cases, it occurred to me that the attorneys could have filed comp consequence claims for pain and not had to take them to the wall.

Way to incite an onerous ballot proposition

Edited: Tuesday February 03, 2009 at 10:12 PM by 7dayweekend@mindspring.com

Posts: 180
Joined: Jun 2004

Tuesday February 03, 2009 10:22 PM

7day,
I'm sorry. I don't agree with your post.
Judicial activism? These commissioners were all appointed or reappointed by the current administration.
In the past, with Baglione II and Pendergrast II, they were accused of many things, but from the standpoint they were too conservative.
They addressed a statute that allows for rebuttal.
They reviewed medical opinions that were un0contradicted, especially those from an AME. Those opinions said the AMA "guides" did not properly capture the extent of the impairment.
With that background, they had to evaluate the Guides, which are imprecise in some areas and constantly say in Chapters 1 and 2 that impairment does not equate to disability, especially in a WC situation..
To illustrate, for shoulders, the WPI is based on range of motion. However, in Chapter 1, the guides say the WPI is based on functional impairment. What do you do with a multiple shoulder surgery patient with good range of motion but considerable functional/strength impairment.
This is a very deliberate opinion by a moderate to conservative group of commissioners.
They have faithfully rendered very considered opinions on many issues from 2004 to the present.
This same group of "activists" provided the basis for the Supreme Court opinion in Brodie/Welcher/Strong, et.al.
LC 4660, by adopting the guides, creates issues because the Guides are not definitive.
The law in CA has always been that evidence which is uncontradicted must be followed. The AME opinion was not contested in Guzman so the WCAB had to decide what that evidence meant.
Whether you agree with the conclusion, I just do not agree the rationale isn't done with careful consideration. It is not judicial activism.
I think it is a compliment to the WCAB to see the quality of work exemplified by this opinion, even though I would have liked a different result.

-------------------------
Bill Armstrong
Armstrong Law Firm

Edited: Tuesday February 03, 2009 at 10:45 PM by billarm

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7dayweekend@mindspring.com
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Posts: 422
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Tuesday February 03, 2009 11:14 PM

<<Almaraz and Guzman are stunning, in my opinion.
Having the ability to rebut the WPI based on factors as vague as inequity or not a fair and accurate measure of the true permanent disability opens the doors very, very wide on this critical issue.. >>

I'm confused, in your first post you say this is radical and opens up everything, now its conservative and well worded. So I'm not sure where you're coming from. I agree with your first sentiment.

They chose to replace a flawed standard with chaos. There will be a backlash. It's not enough to blow things up, you have to come up with something better.

Is the current administration conservative? 70 bill budget to 115 in four years and record deficits? After replacing a guy for financial mismanagement. Juvenile, gutless and incompetent would be the words I would use. Our bonds were just downgraded by S and P.

BTW activists aren't all liberal and some are even nonideolgical. But the language here is a hole you can drive a cruise ship through.

Again the proper thing would not be to blow it up and leave a vacuum but to correct 899 legislatively, maybe use ODG or something else.

They knew in 2005 that the guides were never meant to be used for WC but did it anyway and you know they didn't read the bill. I agree AMA is flawed but for a court to decide 5 years later to throw away the guides (which is what this does despite the equivocation in the language) is pretty bizarre.

Only in California.

Edited: Tuesday February 03, 2009 at 11:29 PM by 7dayweekend@mindspring.com

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jakelast@aol.com
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Posts: 1024
Joined: Jun 2002

Wednesday February 04, 2009 12:24 AM

While I agree with Bill that the decisions are well written, the conclusion that the Almaraz/Guzman decision opens an 8 lane highway through the ama guides. The decision holds that if the guides are inadequate or do not properly address the workers impairment, the guides can be circumvented. Part of the problem is tha tth Guides do not corrolate at all to loss of earning capacity or descriptions of disability. As such is is not going to be too difficult to demosntrate that the guides are not an adequate description of PD.

While well meaning, I find the outside limits difficult to describe. I suppose the real test will be the results as cases go up and the WCAB decides which cases do rebut and which do not. then we may get an idea how the paramaters of this decision will play out.

I think the other decision is perfectly rational and while mathematically complex, it is the kind of decison that appears easily justified by the record and the PD system.

We are in for a wild and crazy ride.

Jake Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

Posts: 180
Joined: Jun 2004

Wednesday February 04, 2009 5:51 AM

"Again the proper thing would not be to blow it up and leave a vacuum but to correct 899 legislatively, maybe use ODG or something else."

Now I am not sure whether it is the Administration and drafters of SB899, the Commissioners or both that you feel are culpable.

It is not the role of the WCAB to correct SB899. It is the role of the legislature. The WCAB carefully addressed the language of SB899. They concluded the schedule was/is prima facie evidence. That is what the statute says. If the Legislature wanted the schedule to be the PD or be conclusive as to the extent of PD, it could have done so and did not.
Combine the statute itself with the AMA guides and we are left with tables and measurements that measure impact on ADL's, not work and descriptions in Chapters 1 &2 as to how the WPI translates into work disability.
As I said before, Knight requires this rebuttal to be based on solid and credible evidence. Pre 899, one major issue was an employee receiving 50 and 60 percent ratings while doing their U&C. This decision says an employer can also use that type of evidence to show the WPI is not adequate and is excessive.
I recently talked with a claims professional who had a QME report for a police officer with heart problems. The rating was 64 percent and the officer was doing his U&C. This case allows that employer to rebut the AMA.
While Jake properly notes that the WCAB did not set the limits, that was not an issue before them. Indeed they sent each case back to develop the record and did not concede that the WPI had been rebutted, in either case. The Supreme Court will never set the limit unless and until the cases come to them where evidence on that issue has been presented. The WCAB did, however, give everyone in the system the guidelines to what can be used as evidence. But, they make clear that just saying the rating should be higher, or saying in my judgement the rating should be higher does not make it so.
A return to the 80's and dueling doctors is precluded by LC 4062. However, it might be we will want that type of option if the medical community does not meet it's challenge and allows personal bias and attitudes to impact their judgment and opinions.
The drafters of 899 clearly stated they felt forcing the use of AME's and QME's would, over time, result in higher quality opinions devoid of bias. Forcing their use would result in higher quality opinions that would not be influenced by referral incentives. Well, that basic premise will be open for assessment going forward as the only medical evidence before the WCAB will be PTP, QME and AME opinions.
I did not say this is radical. I said it was stunning.
I did not say it opened up everything, I said it opened the door to rebutting the presumption very wide.
As I said before, as I read Foote, Cortez, Kramer and Costa/Boughner, one could see the WCAB stuggling with the issue of what overcomes the prima facie evidence.
Had it chosen, the Legislature had 5 years to recognize and come to grips with the issue. As it has done with its required responsibility to deal with our budget crisis, Sacramento chose not to address the obvious.
Finally, the WCAB had to do so.
Now, the legislature will have to do so. In the interim, the skills with which WC matters are managed by claims professionals, lawyers, doctors and judges will be tested. Those with the best skills who perform the best work will achieve the best results.
Those who stand in the hall way and argue over items that are not evidence, those who do not prepare their cases properly, and those who do not still understand the meaning of evidence will have a very rough road.
Of course all of this pre-supposes we ever get a case to trial with EAMS and its non-functional impact.

-------------------------
Bill Armstrong
Armstrong Law Firm

Edited: Wednesday February 04, 2009 at 5:56 AM by billarm

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graiwer
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Wednesday February 04, 2009 8:09 AM

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7dayweekend@mindspring.com
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Wednesday February 04, 2009 8:28 AM

Again, I don't think it is "liberal activism". I think it is activism. I think most DAs dislike the Guides. I liked the 1997 PDRS a whole lot better and it was much more rational. There aren't too many people who like the AMA Guides for workers' comp, including the authors of the Guides!

A better way to write the opinion would have been to recommend more definitive guides where AMA fails. Instead they opened it up to endless theoretical bickering about how many angels dance on the head of a pin.

This decision doesn't bother me as much as the inevitable backlash does. Also, I see endless depos and delays asking for reconsideration based on a number of theoretical arguments outside the guides. Grip strength is definitely back in play, and so is rating by analogy. If I were an AA, I might be tempted to depo every AME ortho who did not consider grip strength. Our income will go up, but I'm not sure the worker benefits in the end.

BTW Arnie hasn't been "conservative" since 2006 and he's been a buffoon all along. This state is so poorly fiscally managed that I fear a radical reform that would make SB 899 look compassionate by comparison. If anyone thinks this is impossible, look at Arizona's system.

There are two sides to the coin of worker benefits, their awards will go up, but it will take longer to get there while they use up their 2 years of TD.

Edited: Wednesday February 04, 2009 at 8:53 AM by 7dayweekend@mindspring.com

Posts: 91
Joined: Mar 2006

Wednesday February 04, 2009 1:11 PM

WOW, this is awesome! I thought this message board was dead up until now.

I for one would love to read the applicant and DA comments on where they were at prior to today, when the applicant argued that their current rating, per the AMA guides, were not consistent with the actual disabilty their client/s suffered? How, before today, have the judges responded to these arguements? I am sure the DA's, prior to today, moved to quash any such arguments? Now what will likely happen when applicants argue such? what wil DA's argue?

What should treating physicans do with respect to their Permanent and stationary reports -- going forward?

What does this mean for the value of cases from an AA standpoint?

THANKS!!

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Doc Newton
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Wednesday February 04, 2009 1:26 PM

Whenever an attorney likes the effect of a judicial opinion, they almost invariably say it is "well-reasoned", "well-written", etc. On the other hand, when another attorney does not like the effect of that same opinion, they will say it is "arbitrary", "irrational", etc. And so it is with the Almaraz/Guzman en banc opinion. The sole exception seems to be Mr. Armstrong who, although a generally conservative defense attorney of considerable intellect, is willing to acknowledge that the opinion is not just liberal judicial activism.

I have read this exchange with interest, and indeed second the views regarding Mr. Armstrong who I have known for many years ( more than I care to count). I have not always agreed with his positions, but have consistently found him to be intellectually rigorous and honest, and indeed one of the sharpest minds in the attorney community. The comments he has offered here are indeed a springboard for much further discussion, and he deserves appreciation for the effort and approach.

On a personal and somewhat wistful note, I recall well helping to author a CSIMS position paper arguing against the introduction of the AMA Guides. We recognized the abuses inherent in the 1997 PDRS, but championed a modification of that system, not wholesale replacement with an obviously flawed and inadequate AMA Guides 5th Edition. The politics at the time was such that there was ( rightfully) a hue and cry over the excessive use of "subjective factors of disability", and high ratings which were really not justified or in keeping withe IW's situation. The proponents of change naively thought the AMA Guides would bring greater "objectivity" and less "gaming". It was painfully obvious to many of the well experienced AMEs that the effort was misguided, and indeed the latest "en banc" decisions seem to have brought us full circle.

One has to wonder where we would be if the 1997 PRDS had been legislatively modified to put a cap on Subjective ratings at say 10 or 15%PPD, thereby eliminating the soft tissue cases that were often characterized by applicant oriented QMES as "Constant Moderate" pain resulting in 50% standard ratings for cases devoid of Objective findings of any sort. Other types of legislated changes could also have been made. The 1997 PDRS was indeed "brilliant" in many respects, employing multiple methodologies including descriptions of Subjective factors, Objective Factors, Work Preclusions, and Scheduled Disabilities.

When SB899 passed, we noticed the language that the determination of impairment " shall incorporate the AMA Guides", which seemed quite different that saying " shall be based exclusively on the AMA Guides...". Now that the WCAB has addressed this, AMEs and QMEs will likely once again get caught in the crosshairs of differing interpretations and viewpoints on how a case should be rated. As a doctor, I have to wonder how ANY case can get resolved in this fundamentally uncertain climate, save through C&R.

-------------------------
Fredric H. Newton, MD
Founder/CEO, Newton Medical Group
www.newtonmedicalgroup.com
Neurologist
510-208-4700
rick.newton1@comcast.net

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cmunday
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Wednesday February 04, 2009 4:19 PM

I don't know if this is activism or what have you (although I frankly wonder if the WCAB was not thinking about forcing the legislature to come up with something different). My focus is a practical one as a Dr. who tries to follow the science of his field and apply it according to the rules put forth by the WC system. With all of the recent changes in the law, particularly apportionment, I've frequently stated that I want guidance from the law I don't want to create the law. Seems like this ruling will reinvigorate the careers of Doctors who have idiosyncratic views on disability who have not been willing to follow the AMA Guidelines. I, too, wonder about devolving to defense doctors and applicant doctors in spite of the fact our current rules don't allow fur dueling Doctors. I've quoted Newton (Sir Isaac, not Rick) who conceptualized a fundamental law of Physics that "For every reaction there is an equal and opposite reaction". Abuse of psychiatric claims led to the predominant cause threshold. No science behind it, completely arbitrary, and I think even Bill Armstrong would agree not really fair to apply such a standard to one class of disability. But, perfectly understandable to me given the historical context. It was one of those "reactions" described by Newton. Even the most ardent defense attorney has acknowledged the unfairness of the new PDRS and many have anticipated a reaction. I've thought it might well come in the form of a revolution from working folks. Didn't expect the revolution to be led by the WCAB.

I think of all the time and effort that went into understanding how to practically apply Escobedo. This decision is like a hundred times more complex than Escobedo.

I am already talking with CSIMS about setting up workshops consisting of attorneys, judges, doctors. However, I don't know that any of us can yet put this ruling in perspective until we see how it plays out. I also looked at my schedule because I anticipate a great deal of additional time to write reports - I already get these ridiculously complex cases - this is going to make report writing an extremely arduous task. When the new rules on apportionment came out I immediately wrote a "first blush" impression that stimulated a great deal of discussion which ultimately helped me get a handle on the issue. I wouldn't even know where to start with this decision.

Enough for now. I only occasionally read this forum. Will be a very frequent visitor for the near future. I really appreciate the input of all who have written here. Thinking this through with back and forth should help all of us to digest it.

Claude S. Munday, Ph.D.

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7dayweekend@mindspring.com
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Wednesday February 04, 2009 10:06 PM

Well stated, Charles. As I often say in depos, "I think your issue is with SB899, the Guides and the Admin Director, not with my opinion."

Here's how you drive rats crazy in lab experiments. Train them to use a maze then keep moving the cheese.

I see no point in attending QME seminars in the Guides if the rule is basically anything goes.

This will be a record year for depos. What was once airtight and compliant is now insufficient.

If any of you think the insurance lobby is going to stand by and watch a repeat of the eighties, you are kidding yourselves.

Edited: Wednesday February 04, 2009 at 10:24 PM by 7dayweekend@mindspring.com

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Doc Newton
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Thursday February 05, 2009 9:19 AM

Just received a copy ( through CSIMS) of Jacobsmeyer's analysis of the WCAB en banc cases. As with Armstrong, a cogent, thoughtful, and erudite piece of work. (and with literary references even!!).

Thanks Jake, and why don't you put a link up here?

-------------------------
Fredric H. Newton, MD
Founder/CEO, Newton Medical Group
www.newtonmedicalgroup.com
Neurologist
510-208-4700
rick.newton1@comcast.net

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7dayweekend@mindspring.com
Senior Member

Posts: 422
Joined: Jun 2004

Thursday February 05, 2009 11:04 AM

Here is the link to Jake's excellent analysis:

Jake via CSIMS

Money excerpts:

"The ultimate conclusion arrived at by the W.C.A.B. is the guides allow a physician, through
the exercise of his or her judgment, to modify an impairment rating. "

The AMA Guides highlights that the role of an evaluating physician is not simply
to take a few objective measurements and then mechanically and uncritically assign
a whole person impairment rating. Instead, the AMA Guides calls for the
evaluating physician to draw on his or her judgment and experience in reaching a
determination regarding impairment.

"So much for the idea that two physicians, evaluating the same individual should arrive at
similar ratings when applying the guides. According to the W.C.A.B. such mechanical
application of the guides is not required and indeed appears to be discouraged. Physicians,
instead, are encouraged to spread their wings and become creative in their applications of
the Guides. It seems to me that is how we got into trouble with the last PDRS."

"The one unintended (perhaps) consequence of this decision might be to compel the
legislature to address the issue of benefit adequacy especially at the lower end of the PDRS
in return for some legislative action that makes the PDRS presumptively correct and
limiting the ability to rebut."

My take:

Some doc is going to make tens of millions writing sick building syndrome reports.

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FMG
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Thursday February 05, 2009 12:21 PM

Well, I understand all the worry but if the physician will take the time to clearly look at the AMA Guides Impairment and then, if needed, use appropriate analogies, it is possible for the AME/QME to come up with a reasoanble impairment rating. Also, there may be some increased justification for Functional Capacity Evaluations in this new scenario. I do agree that there is quite a bit of room for contention and litigation. Otehr than for the Subjectives, the old system of describing disablity and loss of work capacity was pretty fair.

Steve

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postscript2
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Thursday February 05, 2009 12:32 PM

What about all of the cases that were caught in the "time warp," prior to these decisions? Where is the equity for those who were forced to settle for less?

LCS

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denyse
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Thursday February 05, 2009 4:50 PM

For what it is worth, after reviewing Jake's analysis (and a quick peek at a few of the out state cases cited), I have the following observations: Oligivie is not worth the effort, and the other two bring in the theory of ANALOGY. Analogies are discussed on page 11, and seem to carry a pretty high threshold. One needs to tie both paragraph one and two together (new medical conditions, complex or poorly understood, etc. + judgment). The ones I see, use the second only (judgment), which is flawed. The good news is that 4062 (AME/PQME )does a great job of self-policing docs (referrals). In other words, a renegade doc (see the recent fibro discussion in the AMA thread) won't have much of a shelf life if they live in left field. If it does not meet the substantial medical evidence threshold, it means little. Yes the stakes are racheted up once it's in writing, but the only thing that matters is the judge's instructions. Who does their homework and makes the best case. Then it come down to evaluating risk and managing exposure. Case management 101. I have seen many analogies, and most are poorly reasoned. That said, I have seen some that make sense. As I always say, be weary of the rater that tells you the Guides are black and white. Plus, the last time I checked, they weren't real fond of SB 899 at the board level, so proceed with caution. May cost you $ to win (exposure). Get an expert involved, and realistically assess risk. I don't see anyone credibly making a case that a finger nail removal is analogous with a laminectomy. I see limited risk. The big disputes will be closely reviewed. It's the 10% disputes that pave the way for upping the floor in negotiations. At today's PD rates, that is something. I see a lot of unpaid work by the AA's and a lot of billable hours for the DA's (depos), which marginal gains for the applicant. I agree with Jake that the bigger picture is accelerating the benefit adequacy decision by the AD. There is no question that the new cases help the applicant move the exposure up, but that takes a credible doctor with a credible opinion, and a fair minded IC/AA (perfect storm). This issue is not that dissimilar to the day the analogy of vertigo and working at unprotected heights morphed into a knee preclusion. Someone made the argument, and someone agreed. It then became one of he unwritten rules. In summary, I am not in the camp that says whatever the doctor says is golden. Does it meet the substantial evidence threshold? If not, game on. Judges and DEU raters are reviewed also (appeals). Personally, I am surprized it has taken this long (SB 899 is almost 5 years old). Get your ducks in a row. The recent decisions are about rebuttal, and you must rebut WPI. 5th is here for awhile. Maybe we can fix the FEC. I dunno

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7dayweekend@mindspring.com
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Thursday February 05, 2009 6:07 PM

<<Well, I understand all the worry but if the physician will take the time to clearly look at the AMA Guides Impairment and then, if needed, use appropriate analogies, it is possible for the AME/QME to come up with a reasoanble impairment rating. >>

The problem is the possibilities are limitless. I thought my 35 page report had everything covered. This is impractical in the real world. Someone can always ask you come up with another "analogy" or another angle. I suspect the depos will be endless.

You're asking doctors to engage in creative writing, not objective assessment. John Updike is dead, so I can't hire him as a consultant.

<< I have seen many analogies, and most are poorly reasoned.>>

I agree with that.

Read the PDF files. Those were pretty routine ortho claims. If they felt underrewarded for chronic pain, they could have just filed a psyche compensable consequence.

I think the two brakes on runaway claims will be the 104 week limit and the state of the economy. The claimants won't be able to wait all this out.

Edited: Thursday February 05, 2009 at 6:13 PM by 7dayweekend@mindspring.com

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denyse
Senior Member

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Thursday February 05, 2009 7:56 PM

Once again, you can write anything you want - does it make sense? Who agrees to AME's that don't make sense.

My opine? Don't Iceland California. When the dust settles on this issue, everyone profits but the employer. Disputes.

GAF is the kine - wake up CAAA.

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7dayweekend@mindspring.com
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Thursday February 05, 2009 9:23 PM

Really. Why didn't they just add a psych for the chronic pain and not go through all the appeals and delays? It would have accomplished the same thing with less expense and less time.

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postscript2
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Thursday February 05, 2009 11:15 PM

Most of the "states" in the U.S. use and have used the AMA Guides for years and years... Along with that the LSHW Act!

It's all a matter of "application" and how they are used in various states. I've adjusted for the LSHW claimants, as well as a "few" other states...

The methodolgy is the same. The "application" of converting a WPI and LEC is FAR different. I've posted this over and over and over... Falls on deaf ears.

Perfect example:

For the extremities in say, the state of Arizona--and may others, the WPI converted into a percentage of the body part, was usually awarded 60% for U/E's and 40% for L/E's. This was coupled with a number of "weeks" certain and then the AWW was the key to the $$$ per week, per injury. In the cases of Spinal and anything else, it was based upon a "loss of earning capacity," and an "expert" would be either agreed upon or either party would obtain one and the parties, would usually, "meet in the middle." Very simple? YES. Perhaps it's time for those V.R. Counselors to "gear up" and get ready to be hired and retained as expert witnesses...

The problem with CA is that IMHO, it's almost like a different country, as opposed to the rest of the USA. I would wholly agree that subjective complaints, absent objective findings and "pathology" were to blame for those huge settlements... Likewise for "work restrictions." Most of the I/W's, statistically, went back to the same line of work as prior to the injury.

What we have here is a quandry of No Meeting of the Minds. I don't blame the "guides" at all. I'm not certain upon whom the blame, if that is a correct term belongs to. Again, it's a matter of interpretation.

7-Day:

I agree that "psyche" is the only thing that brings the value of a claim up. Would you agree that it's an inherent factor of most injuries these days, esp., when "U.R." denies almost everything? Seriously, after being in this business for over 20 years, I really think that the majority of IW's just want the appropriate tx, get well and return to work.

In closing--when the economy takes a dump, most often claims increase... Again, just my opinion and certainly based upon experience.

LCS

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jrwlaw@pacbell.net
Junior Member

Posts: 1
Joined: Jul 2007

Friday February 06, 2009 9:13 AM

At the moment this is the best show in town; I logged in knowing there would be a wealth of opinions on these en banc decisions and I have not been disappointed. Frankly, I don't care that the decisions are well-written or well-reasoned; I'll concede those points. However, I do agree that the bottom line is that the system is becoming dramatically more unworkeable than it already was. Instead of taking a system that had worked reasonably well for many decades, albeit with individual inequities here and there, and improving it--i.e. making the adjustments suggested by RAND, the legislature threw out the baby with the bath water and foisted the current system on us. Now the Board has taken upon itself--in a well-reasoned and legally sound (again, conceding this for the sake of moving forward) decision--to recraft the process of determining permanent disability. It may be logical. It may be consistent with LC 4660, but it ratchets up the complexity factor mightily. Here I certainly agree with my friend Claude Munday, with whom I sympathize and commiserate. Does the name Rube Goldberg ring a bell?

I'm thinking I should have gone into accounting or systems management or something similar instead of law. I do think these decisions will increase the pressure dramatically for some new and dramatic reform of this broken system. We really are losing sight of the goal as we get more and more wrapped up in the minutiae--I liked the reference to angels dancing on the head of a pinhead. This is a pinheaded system. One (meaning I) can only hope our legislature will pay some attention to this in this age of budgetary impasses and declining employment.

Jerry Wells

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Friday February 06, 2009 9:53 AM

Actually when the econ takes a dump, that means the fringe workers (think laborers in construction), that are the heavy claim filers, are out of the market. The post term statutes also help police the late claim filing. This differs from the wild west 90's.

This all comes down to substantial medical evidence. I have done much research on analogy and the physician judgment piece (method doesn't adequately encompass the condition) cannot be used myopically. The Guides are littered with directions like: "more specific methods", "only those with objectively verifiable diagnosis", "based on objective anatomic findings take precedence", etc. When combined with paragraph one on 11 (new medical conditions...medical syndromes poorly understood...new or complex medical condtions), the threshold appear quite high. Like I said, you can write whatever you want, but does it make sense when looking at the Guides in whole (construction). If not and you are outside the box, the onus is on the applicant - not the other way around.

To me the decisions just make things more interesting. I have always said the Guides are not Black and White. The limited case law on analogy cuts both ways. I see much more creative compromising (or at least contemplation) assuming the range is realistic - at least during the interim. The defense needs to be realistic with their clients also. Exposure.

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7dayweekend@mindspring.com
Senior Member

Posts: 422
Joined: Jun 2004

Friday February 06, 2009 11:28 AM

I guess in the end, my take on this is the same as with the sleep disorder controversy....why not just solve the problem by getting a rating under the GAF which takes into account mood, sleep, pain, etc. if you don't think the AMA generated WPI covers the extent of actual impairment? Less cost, less time, less hassle, less rebuttable and less complexity.

Edited: Friday February 06, 2009 at 11:29 AM by 7dayweekend@mindspring.com

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Friday February 06, 2009 12:02 PM

Plus 7 day, you ring the bell with the 40% FEC [8] increase (psyche).

Make no bones about it, this will bring out the maverick in the maveick docs, who may or may like depos and who will not like the loss in potential referrals.

JRW: With all due respect, "a system that had worked reasonably well for many decades..." For who??? 45 states use some variation of the AMA Guides. Tweak the FEC and forget the make up stuff. Plus, look for the soft spot as 7 day alludes to. They are there.

Posts: 180
Joined: Jun 2004

Friday February 06, 2009 12:40 PM

I, for one, do not believe the WCAB in Almenar /Guzman/Ogilvie recrafted the PD process. If anything, I believe this WCAB has been very, very careful in enforcing SB899, LC 4660 and implementation of the AMA and FEC components.
Where the WCAB clearly struggled was the aspect that the schedule was prima facie evidence. The Commissioners didn't draft the law. They do have to interpret it just as they interpreted LC 4663/4664, LC 4610, etc.
It seemed to me that the WCAB sent out its first warning with Costa I that the schedule could be rebutted and they needed guidance on what would satisfy as rebuttal. While the case was sent back to the WCAB, my view was the request for guidance was also directed to the DWC and to the Governor and legislature. With Costa II/Boughner, etc, they kept sending the message with relative silence in audience.
I, for one, did not think things were fine before these enbanc decisions.
However, when I would read WCIRB data that PD payments had been reduced close to 60% because of SB 899, I also recognized I could well be mistaken. Surely I was at many, many seminars where I heard about the AMA guides, how to use them, how to cross examine doctors, and the like. I attended a number of rating seminars. Each time I left, I had heard the WPI came only from the tables and measurements of the AMA.
In 2008, I was asked to be a Defense Attorney representative on a CSIMS/CAAA panel and also be on a panel at the CAAA rating seminar in December.
Through the materials I received as a participant, and from my participation, I had a much better chance to observe what the Commissioners were seeing. The cases I reviewed were stunning to me. I learned of Foote, Cortez, Kramer. I read a number of F&A's where VR testimony had been combined with WPI information to support total disability determinations that were upheld on Recon or not appealed. This started me on the process of trying to carefully track lesser known/reported cases in the CWCR and Appeals Board Reporter. More cases of this type, including Sheron were found.
What was clear to me before Almenar was that the prima facie evidence of the schedule was under attack and, far too often, to the considerable detriment of the employer or insurer.
In our firm's October client seminar, I provided the WCIRB data on PD reduction and cautioned the audience on their being too accepting and reliant on the WPI aspects of the AMA guides. I provided guidance on the steps we recommended to be proactive; guidance our firm had found to be quite useful and successful.
It looks like it is just me, but I don't look back on the period from 1997 to 2003 as a time when that PD schedule served our clients particularly well. Despite numerous legislative changes , WC during that time went from about $10,000,000,000 to $27,000,000,000 in annual payments. Escalating PD was a major reason.
Against this background, it looks like I might be one of the few, if not only, defense lawyers who sees some positives in Almenar and they include the following:
1.) We have always known the schedule could be rebutted.
Now we have the criteria as to what might do that. While DRE III's might not be limited to 10-13, they also should not be 70 to 100%. Of course I am realistic. I know efforts of that type are coming. But, per the above, they are already here mostly disguised as DFEC/Sleep disorders/psychiatric issues/sexual dysfunction, etc
2.) If the SB899 drafters are correct and removing referring sources of QME's and AME's eliminates or mitigates "bias" or other "influences" from the opinions, we should, as Dr Feinberg illustrates, receive properly and carefully reasoned opinions based on verifiable and provable evidence of when the WPI is rebutted and what a more accurate and verifiable WPI on the ability to work and earn income would be.
3.) If the DWC does their work properly to heighten and strengthen the quality of panel QME's, we will avoid the free for all that many are predicting. (this is the one area where I am more than a little concerned) I am at least as concerned about the EAMS impact/delay in ability to get cases through the system and what those will mean with these types of issues/cases.
4. ) There should be some decrease in the costs for rebuttal including VR/FEC costs.
5.) Escobedo and Hertz and LC 4663/4664, and especially LC 4664(a) become issues with financial impact. Again, following WCIRB, it clearly seemed far more resources and costs were being allocated on these issues than were necessarily prudent, considering their savings. Spending thousands to obtain 25% apportionment on a DRE II seemed a curious choice, but one I saw done many times at the WCAB.
6.) For those who do advocate a free for all on ADL's, their patients or clients will be at a heightened risk of WC fraud.
7.) To the extent there is a greater effort to enhance the WPI, there is a lessened risk to employers under the FEHA
Well, sorry for my editorial. I just don't have the same fond memories of the period from 1997 to 2003 and I don't think things were as rosy pre-Almenar as others.
Certainly, I was not at all privy to the SB899 legislative process and why the thoughts and recommendations of high quality physicians such as Dr Newton were not included.
By now, we should all know there is not a perfect way to draft statutes in WC. You cannot make it simple because injury and disability is not simple. Indeed, the AMA guides tell us that.
I fully understand and respect the desire for the process to be simple and mechanical. That could have possibly been done rather easily by changing the words "prima facie" evidence to "presumptively correct."
When that was not done, the current Commissioners were forced to fashion the method of rebuttal so that all of us are now within the same framework.

-------------------------
Bill Armstrong
Armstrong Law Firm

Edited: Friday February 06, 2009 at 12:42 PM by billarm

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cmunday
Junior Member

Posts: 7
Joined: Oct 2006

Saturday February 07, 2009 10:47 AM

As usual Bill you have looked a bit deeper into the this than most. I sincerely hope the practical outcome is closer to your prediction than that of most commentators who are basically predicting a free-for-all and chaos. For the system to work reasonably well there has to be some sort of balance between the cost to employers, proper services to injured workers. Flowing from this is the need for medical people to be paid well enough that we get quality treaters and evaluators. Attorneys need to be paid well enough that applicants and insurance carriers can get quality attorneys to represent their interests. Also, the system must not get so bogged down in bureaucracy that it doesn't deliver these things in a timely manner. While many point fingers at other players in the system (workers milking the system, abusive claims examiners, dishonest doctors - everyone receives some blame) I fear it's the bureaucratic bog down that may be the biggest negative at present. My fear is that this new ruling will tie everything up even further and accordingly do little to serve the interests of any in the system. This is not at all to say this is by intent. Whenever a major ruling like this comes out I always perversely ponder what unintended consequences will ensue. If nothing else, it will be interesting to see how this plays out.

Claude Munday

Posts: 180
Joined: Jun 2004

Saturday February 07, 2009 1:41 PM

Claude,
I would second..and third your views on potential negative impact of the bureaucracy and administration.
If cases cannot get through the system, with EAMS implementation being a practical and substantial roadblock, that will keep cases open longer and keep these issues and processes in play.
As with everything, there likely will be differences in Southern and Northern matters, and perhaps they will be considerable.
With that said, I have long been a believer that this WC system functions as well as it does because of so many who work within the system. Whether we work for employers or employees, or as medical providers to the system, whether we are doctors, lawyers, claims professionals, claims managers, judges, and others who can make a difference, we are going to be challenged to make a difference.
But, in doing so, my view is we need to appreciate we have an economy in crisis, we have an EAMS process that is not, in my view, functioning either well or adequately.
We have employees and employers who need to have this work.
I do not for one second think or acknowledge this is going to be easy, or that it will occur automatically and mechanically.
The massive challenges created by the EAMS transition and attitudes toward SB899 and its changes make it more difficult than ever.
For those who have felt rigid adherence to the AMA guides and 2005 schedule was wrong and produced inequity, they have reason for optimism.
For those who have benefited by the SB899 changes with reduction in costs and more control of medical, they have some certainly about what can be used for rebuttal. There may be some disappointment. But the schedule has not been thrown out and there likely will be less challenges to the schedule itself.
That part of SB 899 that will now be tested is the AME/QME process and the integrity of it, or not. I already said I have concerns about the QME aspect based on 5 years of experience and no visible improvement.
Almanar does provide the medical community, many of whom are in CSIMS, with a considerable additional impact over the results of individual matters.
However, whether this is looked at from an employee, or employer perspective, there are controls in place. The use of evidence and the adversarial system of the WCAB is the most obvious and important control.
When we narrow all these words to a single focus, I agree with you.. skills and talents, combined with integrity and ethics, are of utmost importance in these challenges.
I can see an analogy to what occurred on Wall Street with unregulated markets from 2001-2008.
Skilled and talented individuals used little, maybe no, ethics and integrity. and severely impacted our Country and its economy. Greed, disguised in many descriptions, won.
On a smaller, but no means, insignificant scale, that is now where we are in WC in California, in my view. Many talented people across many professions, along with those in the WCAB/DWC have an opportunity to demonstrate that ethics and integrity are paramount. Not everyone will do that.
Hopefully and optimistically, I am in the camp that enough in our community will bring our talents, our skills, our ethics and integrity to a time of considerable challenge.
Hopefully and optimistically, those who do, people like Jake, like yourself, Dr Newton, Dr Feinberg, and many, many others, will make the difference and prevent the chaos and turmoil that people I respect greatly, with Jake at the top, quite legitimately, think could happen.

-------------------------
Bill Armstrong
Armstrong Law Firm

Edited: Saturday February 07, 2009 at 1:45 PM by billarm

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cmunday
Junior Member

Posts: 7
Joined: Oct 2006

Saturday February 07, 2009 2:09 PM

Bill

There are indeed many in the system at all levels who honestly try to follow the rules, maintain some compassion and common sense, and we can only hope that such people will carry us through this. I can tell you from the Dr. end that most of us are trying to understand the system and integrate our best clinical judgements with the legal requirements. Many attorneys and claims people would be surprised how much time the medical folks spend talking to each other and pondering how to best conceptualize an issue. Being seen as a "seasoned" person in the system I get at least several calls a month from others wanting my input on how to deal with a tough issue. I gladly take these calls because I truly believe that better service by others benefits all of us (I have gotten the question from some of "Why train your competition?" - The very asking of the question shows the lack of depth of understanding that all of us are symbiotically related in this system). I was at Berkeley in the 60's and quickly realized that I could not change the world but that I could have a positive impact one person at a time. So, many of us will trudge forward trying our best to incorporate this ruling. I can deal with the anticipated questions - there will be many medical responses in the alternative: ie. if Mr. Armstrong's interpretation of the law is correct......, if Mr. Jones interpretation of the law is correct......Of course you and I both know that there will be some who will take the opportunity to attempt to advance their own agenda. Given that we are close to an AME system and given that the system is small enough that the Judges know who most of the extremists are, I am hopeful that any blip upward in opinions from extremists will be short-lived. Don't know if this is naive or unrealistically optimistic but I've heard too many predictions of Armageddon and it hasn't happened yet.

I'm not sure I understand your concern about the QME system? Is it that both sides can end up stuck with an opinion where the opiner is not very sophisticated?

Claude Munday

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bpitcaith@aol.com
Junior Member

Posts: 6
Joined: Jun 2002

Sunday February 08, 2009 11:20 AM

For those who believe that there is an overreaction afoot to the Ogilvie and Almaraz/Guzman en banc decisions, think again. For those in the applicant attorney bar who thought they'd have to wait for the present Governor to leave office before the pendulum could swing back in their favor as to PD ratings, your wait is over. I agree with other posters here that that it is not our Board that is the culprit here, as they have simply put California in step with many other jurisdictions (who similarly utilize the AMA Guides in industrial cases) to have allowed PD ratings to deviate from, supplement and sometimes outright disregard the Guides. Of course, we were all initially sold a bill of goods that the 2005 PDRS would, at long last, usher in a rating system that would base PD on objective, measureable clinical criteria and that gone were the days where we'd see grossly inflated ratings based on largely subjective presentations or diagnoses of questionable repute---oh, and we were led to believe that the FEC factor in the schedule was the last we'd hear on that aspect of a rating. Except for the few who really have kept abreast of this brewing storm beginning with Costa I (I admit I did not see this coming to this degree), these decisions caught the vast majority of the comp community by surprise, and there is and will be a strong dose of denial at to its significance. But, at least in the near term, we will have a Wild West scenario (good one, Jake) where the shootout will slow this system even further, cause vast further med-legal discovery/depos, and encumber us with considerable increased litigation costs (aside from obviously increased PD ratings).

It is interesting the the Board, as if to comfort us, prefaced and concluded Almaraz/Guzman with assurances that its decision did not, in any way, shape or form, signal that the old scedule would ever apply, which allowed ratings per work restrictions. After the dust settles, we in the defense/employer community might well yearn for those days of old schedule ratings. If one looks at the out of state cases cited by the Board in Almaraz, the defense has cause for concern. A case in New Hampshire involved a "myofascial pain syndrome", which the court said was "incapable of measurement under the Guides", and should have allowed the applicant to present an "alternative method" of measurement of impairment. The actual method was beyond the scope of the issue before the court and was not discussed. So, assume you have a case involving a pain syndrome of some sort, and assume it is of the variety that has little corroboration in the physical realm (seen a few of these, have you?), the applicant is presenting as one who could never think of returning to any type of work, and we are left with the QME/AME possibly advocating a disregard of the Guides as it fails to address this type of pain-based impairment---of course, the threshhold problem is there is no outside parameter (aside from the evaluator's conscience) as to the extent of the functional impairment to allow, as such would be dependent on the credibility of the subjective presentation as viewed by the examiner. To further bolster their case, the applicant will introduce a psychiatric report (and good luck factoring out the PD overlap/duplication factors as between the "physical" injury and the psychiatric).

But wait, that's not all, the hypothetical applicant in the above case, will also claim an absolute or near total inability to re-enter the labor market (and who might well be taking a near toxic level of industrially supplied pain meds), and who will introduce a VR expert opinion as to dimished future earning capacity. While the formula provided in Ogilvie provides some certainty, it is the reliability of the factors used in that equation where the fight is won and lost. The "individualized DFEC adjustment factor" in this new methodology will cause jumps in ratings that are considerable. There will be a costly battle of the VR experts, but as time goes on, there will likley be greater utilization of agreed VR experts as the methods of wage loss data collection becomes more (hopefully) standardized and objective. We will see, as the economy continues to suffer, estimates of future earnings to be severely impacted, and I assume the defense will have the ability to argue that such dire and unprecedented economic conditions are not something they are responsible for in such DFEC calcualtions.

I have used as an example, admittedly, a "pain syndrome" condition, which is a hot button issue for the defense (but please note I did not discuss the inevitable sleep disorder, sexual dysfuction, and medication-related internal organ claims that would be presented, lest I be accused of piling on). We will see physicians asking that the AMA Guides be ignored in more routine orthopedic cases that would seemingly be adequately covered by the Guides (just look at the out of state cases cited by the Board). There will be a new battleground of the adequacy, reliability and breadth of the Guides themselves---is the average QME versed enough in this area to render a credible opinion. Will we be left with the argument that, well gee, if I stick with the Guides it is a 5% WPI and if you follow my proposed rating, it avoids a result that is "inequitable, disproportionate, and not a fair and accurate measurement of the employee's disability" (the standard set in Almaraz). With all due respect to the QMEs/AMEs in this system, many are still struggling to write reports about the issue of apportionment that comply with the appropriate standards under Escobedo, Yeager, et al---which results in supplementals and depos. And now, these examiners will be (understandably) besieged with requests from the app's attorneys in every case to explain why they are using a particular WPI and isn't it more reasonable to apply another more generous standard. Let us hope that a reasonable standard becomes the rule and not the exception in allowing a departure from the AMA Guides. However, with the WCJ being the ultimate trier of fact of what is/is not 'substantial evidence', we will be left with the lack of uniformity of decisions on PD across the various Boards, which at least part of the reform effort was meant to resolve. While this new rating methodology is to also serve to reduce PD where applicant is functioning at a far greater level than seems "fair" compared to the rating, such examples will be exceedingly rare.

I appreciate Bill Armstrong's comments that this sytem can be made to work with enough dedicated and ethical practitioners. Unfortunately, we will first have to deal with the onslaught of both reasonable and unreasonable arguments/tactics from an applicant attorney bar, many of whom could probably not be entirely faulted if they now feel rather emboldened with a new sense of power and who have more than a little lingering resentment about being kicked around and bullied the last several years. As for the employers who felt that they were getting their workers comp costs under contol, and took comfort in that in a bad economy, there could be some troubling days ahead. It probably is now the employer community that needs to scamble to get the Legislature to act. I agree with others that these recent decisions will likely not be disturbed on appeal, if any are filed. Challenging times are ahead.

-------------------------
Law Ofc. of Bruce Pitcaithley, APC
Fremont, CA

Posts: 180
Joined: Jun 2004

Sunday February 08, 2009 12:59 PM

Bruce, I doubt the system can work with only dedicated and ethical practitioners.
As I tried to make clear, the system is going to work with talent, skill, dedication, ethics and integrity from everyone in the system. For each area that breaks down, the risks increase.
Decisions of Judges are going to be under significant scrutiny, and rightly so.
I regularly appear before some WCJ's who do a wonderful job of being fair and in judging.
I also regularly appear before some who seem to take the position they are still filling the role of an adovcate, the role they gave up when they became a judge.
The WCAB and DWC will be challenged. How they respond to educating on these issues and overseeing the rebuttal will be critical.
I have some other thoughts but am leaving to mentor a 10 year old and try and make a difference in his life, too. I know I am having success with him.
I am going to do everything in my ability to make a difference on Almarez also.

-------------------------
Bill Armstrong
Armstrong Law Firm

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postscript2
Senior Member

Posts: 639
Joined: Sep 2006

Sunday February 08, 2009 2:53 PM

I am trying to consume "Olgavie" into bite sized pieces. Haven't read the other one yet. I am concerned about the increase in litigation and how this will play out with AA's and DA's. AA's may not have the resources to take many cases up on appeal and litigate due to costs; however I looked closely at this part of the decision:

"However, in any case where a party attempts to rebut the DFEC portion of the 2005 Schedule, the method suggested by the dissent will always require paid vocational experts, who will have to do extensive analyses (see below). Moreover, as a practical matter, the dissents proposed method will largely be unavailable to unrepresented injured employees, who will rarely have the knowledge and ability to identify and properly utilize vocational experts.
Of course, we recognize that not all unrepresented injured employees will have access to or the expertise to use a computer to obtain EDD LMID wage data, or will not have the mathematical background to apply the ([1.81/a] x .1]) + 1 formula. In such instances, however, an unrepresented injured employee may obtain free assistance from the Information and Assistance Office. (See Lab. Code, ﾧ 5450; Cal. Code Regs., tit. 8, ﾧ 9924(b).) Also, the WCAB could order a defendant to obtain the wage data."

That having been said, we don't have enough I&A Officers to begin with, so how on earth will they be able to "assist" a "non-represented" I/W through this process? As history has proven, I&A Officers can assist, certainly, but it is usually through a referral to an AA, NO? I&A Officers are not employed to give "Legal Advice."

Secondly, if the "WCAB could order a defendant to obtain wage data," an application for adjudication would be required. If the I/W seeks the assistance of an A.A. due to the above, will A.A.'s be paid at the hourly rate??? I am referring to a D/A whom retains the services of a Voc Rehab Expert and the I/W is not given the same opportunity without imminent assistance. Coupled with this thought, again -- will not an application have to be filed in order to obtain jurisdiction of the WCAB? IMHO, this would invoke AA fees by the hour.

Third, if the D/A's and A/A's are having to face this challenge, what about the "C/A's," in the "trenches" who are responsible for adjusting the claims and decision making? How would an "unseasoned" C/A, and for that matter, an I/W know if and when to make the decision to go the extra mile(s)?

Fourth, who will be responsible for paying for the "dueling" Voc Rehab "Experts?"

Fifth, how can the "RAND" study for DFEC done years ago, possibly apply to 2009 injuries, esp. in the midst of the current recession, unemployment crisis and likely, IMHO, an economy on the brink of a depression?

Whomever posted that this scenario will have defendants wishing for the 1997 PDRS has my sentiment completely. The depth and magnitude of this decision(s) may be incomprehensable to many, unless ANY party is accustomed to the logic behind it. I've much experience with this in multiple jurisdictions; however the outcome, the other jurisdictions (states, LSHW ACT) have a much more simplistic way of doing things.

I especially feel for the AME's and PQME's out there whom are still struggling with the AMA guides, depositions; adversity from the party that claims injustice and facing yet, another potential decrease in pay for services rendered. Further, the current ML fee schedule is going to have to be "re-vamped," in order to compensate what few "good" doctors we have left in the system!!! When will they have time to even complete an evaluation, let alone a "report" when they are constantly overwhelmed with legal challenges to their opinons?

What ever happened to "cure and relieve?" The bottom line is the "I/W" and the "employer" who pays dearly, in the end. Always has been and always will.

I may just be a "C/A," but in reality--it all falls back on "us." No offense to either party, defense or applicant intended here. The "legal eagles," on this forum can hash it out all they want--but who makes the decision as to whether to retain counsel or not???

Hmmmmm....

LCS

Edited: Sunday February 08, 2009 at 3:50 PM by postscript2

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Ozzie
Senior Member

Posts: 430
Joined: Apr 2004

Sunday February 08, 2009 9:47 PM

The situation gets even more bizarre when one considers that well-founded, existing case law allows for the re-opening of a previously "completed" or "closed" case on the basis of a change of law. That happened to Dykes (remember the Gallo/Dykes case from the 5th District?), in the unpublished decision in his case when Gallo Wine re-opened after the SC decision in the Brodie-Welcher cases.

Reopening is supported by, amongst others, Nicky Blair's Restraurant at 45 Cal. Comp. Cas 876, and Knowles at 35 Cal. Comp. Cas 411.

It should be clear to anyone that any applicant's attorney who does not at least file a petition to re-open cases previously settled on the 2005 PDRS and the AMA Guides and get an appropriate rating is committing malpractice, just as any applicant's attorney who fails to get a new medical report in line with the requirements of these new decisions, and who settles a case, any case, is in danger of malpractice.

The sky - or at least a 100% award - is now theoretically possible in any case, given the right combination of applicant complaints, doctors reports, and judges.

And as has been obliquely pointed out by others, there is enough built up frustration and anger within all of the above-mentioned groups to ensure that there are going to be plenty of those newly minted 100% awards.

-------------------------
San Jose Dogman

Edited: Sunday February 08, 2009 at 9:50 PM by Ozzie

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