Apportionment new vs old schedule (California)

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Apportionment new vs old schedule (California)

Postby postscript2 on Mon Apr 06, 2009 1:04 pm

Sorry to sound like a broken record, but what happens in the case when there is a prior award (S&A) under the old schedule via a work restriction and now a new CT with same body part under the AMA Guides???

Dr. stated that under the old 1997 PDRS, the restriction would amount to lets say 10% and if rated today would be 20%. However under the Guides for "cardio," it rates 40%.

It appears the way the report was written infers that there is appx 50% apportionment, but I'm not sure about this as the doctor didn't come right out and say it. Dr. was the same AME on both CT's.

To muddy the waters, how would Almarez and Guzman play in here????

Thanks,
LCS :?
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Re: Apportionment new vs old schedule (California)

Postby vampireinthenight on Mon Apr 06, 2009 2:24 pm

Hi PS,
Why woudl it rate higher today? Additional restrictions? If so, I think you are on the right track. That is what I've been doing. 50% apportionment is probably accurate. You may have a Almarez situation to lower the rating, if you like to dirty yourself with that stuff! :?
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Re: Apportionment new vs old schedule (California)

Postby postscript2 on Mon Apr 06, 2009 5:05 pm

Hi Night Owl:

The reason is that the "Guides" rate higher under certain injuries, such as "cardio," than the prior 1997 PDRS and DONT recognize work restrictions...

I personally don't want to delve into "Guzman and Almarez," but they are "en banc" decisions and stand as "law" unless they are overturned by the "Supreme Court," right?

It just seems logical; the doctor infers that if rated under the old guides it would be a 10% increase, hence my thought of 50% apportionment.

I don't know what to do... I've seen/read so much case law in the last 5 years! I used to hold off on settling these things, but as a C/A, "we" have to advance what is reasonable when a report comes in or otherwise dinged!!!

I know it's apples to oranges, but something has to give here --- and I don't know what.

Thanks for your reply!

LCS ;)
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Re: Apportionment new vs old schedule (California) (California)

Postby TC on Wed May 20, 2009 7:11 pm

You have a prior injury which settled for 10% via the 1997 PDRS. The applicant has a new injury which will be rated under the 2005 PDRS. It is a bit speculative for an evalutor to
go back in time
and rate the prior injury via the 2005 PDRS. However, you can calculate the PD value of the prior S&A in 2005 PDRS terms.

Assuming the prior injury is completely overlapped by the new injury, and assuming the new injury has no other causes other than the prior S&A and the new injury, then simply have the AME/QME rate the new injury per both the 1997 and 2005 PDRS. You will then have three of the four parts of the ratio, to wit:

PD% of S&A i.e. prior injury per 1997 PDRS new injury per 1997 PDRS
X (unknown) is prior injury per 2005 PDRS new injury per 2005 PDRS

Via math, you can then calcualte the value of X = prior injury per 2005 PDRS

The employer’s attorney should ask the doctor’s opinions re (1) overlap, and (2) apportionment via both 4663 and 4664.
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Re: Apportionment new vs old schedule (California)

Postby samcat on Thu May 21, 2009 7:10 am

A panel decison addressed this exact issue last year in;

Minivelle v County of Contra Costa 36CWCR199

The logic is that the old award was invariably based upon a work restriction.
There always was the ability to rate the disability using objective and subjective findings, but in almost all instances the work restriction overlapped the objectives/subjectives.
In their own crude way the objectives/subjectives was a methodology of rating similar to the AMA Guides. Accordingly, an attempt to retrospectively rate the old injury using the AMA guides is irrelevant as it was the work restiction that was the basis of the old award. We have quite a few binding decisions already on the point that it is actual award of PD that is subject to 4664 apportionment and not any equivilant, analogy etc...
In my view the only way 4664 apportionment can be done is if the courts allow for draconian result of just doing the math without any consideration for the fact that old values are different from the new. This is a potential outcome in light of the court's inclination to interpret statutes on their plain meaning, but even an old defense guy like me has a hard time warming up to a theory like that.
This might be a problem that can only be fixed via legislation.
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Re: Apportionment new vs old schedule

Postby davidd on Thu May 21, 2009 7:22 am

Here's the actual Panel Opinion.
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minvielle.pdf
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