Dr. Feinberg's article on Almarez/Guzman (California)

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Dr. Feinberg's article on Almarez/Guzman (California)

Postby rbaird on Wed May 27, 2009 10:50 am

Please take a look at Dr. Feinberg's brilliant article. He lays out in a very lucid manner how and when the AMA guides and present PD schedule may be departed from. He acted as the AME in Almarez. Reading between the lines, it is apparent the AMA guidelines are an inadequate tool for reasonable description of disability. The cure is perhaps worse than the disease, grossly inflated findings unsupported or purely subjective which became all too common under the old rating schedule. The reason I contend the cure is noxious is the elimination of voc. rehab (yeah, it was abused too) and the intentional failure to adjust the benefit rate to reflect true long term economic loss for legitimate injuries have resulted in undercompensation.
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Re: Dr. Feinberg's article on Almarez/Guzman (California)

Postby jakelast@aol.com on Wed May 27, 2009 8:35 pm

I have read Steve's article. While I find it interesting and presenting a number of different options, I am not certain I would lavish quite so much praise on it as Judge Baird for many of the reasons identified by Bob. While I have a good deal of respect for his opinion, I think that many of the suggestions by Steve result in PD ratings that are substantially higher than one would really contemplate and ultimately result in ratings which are not "equitable, proportionate, and a fair and accurate measure of the employee’s permanent disability” to paraphrase some recent case law.

As an example, his rating on the Upper extremity (using the rational he suggested in Guzman) results in PD ratings dramatically higher than even the old schedule. For a 25% loss of capacity for each UE, the total rating, before adjustment, jumps to over a 25% PD value (28%) and after adjustments rises considerably more. This for an individual who stil retains 75% of the capacity for use of her upper extremities and 100% of the remainder of her body. His 15% standard for each separate arm is double the rating those descriptions would get under the old schedule (8% standard and 5% standard) and the final rating is close to 40%, a rating under the old schedule that would have required almost twice the level of symptoms.

Taking the analogy out further, a 50% loss of capacity results in 2-30% ratings adn ends up flirting with a life pension. a 75% loss of capacity results in 2 -45% ratings which after adjustment for for occ and FEC jumps up to 87% before age adjustments While I am sure the Applicant's bar finds that an attractive result, is is hardly justifiable especially since we now know tha many of those ratings (especially at the 25% loss of capacity level) are really for temporary conditions that remit after resolution of the case.

One of the considerations that is frequently ignored in Guzman is that while Dr Feinberg found the 6% combined rating to be low, the actual PD rating as 12%. This may not necessarily high, it is much closer to the anticipated rating than 39% and given a completely normal exam, is more easily supportable than the excessive PD using the so call "loss of capacity" analysis. I have seen other physicians use a similar analysis but tie it to specific body parts which seems to result in much more rational PD ratings than the whole arm analysis. The WCAB decisions tend to make the physisican focus just on the impairment rating without understanding the consequence after adjustments are made.
Jake Jacobsmeyer
Shaw, Jacobsmeyer, Crain & Claffey
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Re: Dr. Feinberg's article on Almarez/Guzman (California) (Calif

Postby feinberg on Sun May 31, 2009 8:19 pm

I feel a need to explain and defend myself. Jake is a good friend and I did not take his critique as a personal attack but he has misunderstood the document that I wrote. In fact, I agree with him in some aspects. First, the article is meant to be provocative and engender thoughtful responses. Many of the concepts in the article are not my recommendations but rather a variety of approaches to consider that I have gleaned from many sources – both defense and applicant. Jake seems very concerned that some of the methods will lead to inflated impairment ratings and he is right. The task of the evaluating physician is to provide a reasonable, equitable and fair impairment rating. Therefore, the high quality report will look first at the standard AMA Guides impairment and if it is not commensurate with the described disability then the physician is tasked to find a better way to determine the impairment. It is as simple as that. The Direct ADL Method may well provide an impairment rating that is too high and the physician should then discard that method.

Please be assured that AME/QME and treating physicians are struggling with the Almaraz-Guzman Decision and how to provide a medically reasonable report. I would also remind you that it is the finder of fact and the WCAB who determine what is equitable and fair. I thus counsel my physician colleagues to do a standard AMA Guides impairment rating and if it appears inequitable for the all the reasons stated in Almaraz-Guzman, to then proceed by analogy with using the AMA Guides other tables, charts and chapters to find an equitable impairment rating.

I am constantly updating the article in question and my latest draft can be found on my web site at http://stevenfeinberg.org/Documents/Alm ... 060109.pdf or your are welcome to email me at stevenfeinberg@hotmail.com and request a copy by return email.

I would personally welcome constructive criticism and other ideas as to how to fairly apply Almaraz-Guzman.

Steven Feinberg, MD
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Re: Dr. Feinberg's article on Almarez/Guzman (California)

Postby vampireinthenight on Mon Jun 01, 2009 3:09 pm

It's been a while since the first copy of the article passed my desk. I guess I should browse the revision. Contrary to it simply being used as things to consider, I have seen it forwarded to QMEs as an example of how to rate. Personally, I am not a fan rating by analogy. I think the WCAB really botched it when they gave poor ol QMEs absolutely no direction or guidance on how to apply the Almarez principles. I suspect they will restrict the application and narrow teh applicability in the next opinion. If not, I'm quite certain a court of appeal will (is Almarez 3rd dist?). I wouldn't waste giving Almarez thorough analysis if I were a MD until the next op comes out. Unless you have some time to burn and like to speculate. :?
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