Almaraz (California) (California) (California) (California)

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Almaraz (California) (California) (California) (California)

Postby denyse on Mon Aug 24, 2009 8:19 pm

Almaraz, if I am not mistaken said that the AMA Guides portion of the 2005 Schedule can be rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability. Problematic is that the doctor's report on impairment is based on ADL (non work activities), and PD is based on a loss of capacity in the open labor market. As such, a doctor opinion on impairment cannot merit substantial medical evidence unless he/she knows what the PD is after FEC, age and occupation adjustments. That is the first Q in a depo. It has always been my opinion that this is a fundamental flaw. It is the onus of the applicant, not he doctor to rebut. Only the applicant/employer (CE/IC) knows what the PD is (under the Guides specifications), and whether the impairment part of the puzzle needs to be manipulated.

I will get into the fair v. unfair debacle next. Why is it unfair? Based on what? Doesn't one need to advance the case on substantial medical evidence?

I tell all my savvy doctor friends to punt on the issue - they are already getting back balled. Most of my savvy AA's have realized that the only ones not getting paid for this esoteric and equivocal protracted discovery/litigation is themselves.
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Re: Almaraz (California) (California) (California) (California)

Postby stewshe on Tue Aug 25, 2009 5:02 am

denyse,

You posted:

<<
Problematic is that the doctor's report on impairment is based on ADL (non work activities), and PD is based on a loss of capacity in the open labor market. As such, a doctor opinion on impairment cannot merit substantial medical evidence unless he/she knows what the PD is after FEC, age and occupation adjustments.
>>

I disagree in part. The "open labor market" is a concept from L.C. 4660(a) pre-SB 899 on 4/19/04. It only exists for claims involving the 4/97 and prior PD Schecules.

The 1/05 PD Schedule instead discusses "diminished future earning capacity" as well as the "nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury...."

The real issue is basically one of "fairness" or "substantial justice" which our Constitution charges the w/c system with seeking to obtain.

The 1/05 PD Schedule must be evaluated on its own "merits" when a rating is being considered for an Almaraz/Guzman "adjustment." For instance, do we have a 15 year employee making $25/hr who has a family, a house with a mortgage, cars, kids in school, etc., and an adjuster quibbling over whether he has an 18% or 23% WPI? I hase seen such a man who, post surgery, could only find a minimum wage job driving a van at a retirement community for minimum wage.

Looking at the big picture, he's probably going to lose his house, become bankrupt, etc. While he and his family suffer, the cost is going to be spread out to all of us instead of his employer. He and the rest of us would be better served if he were fairly compensated for his "impairment" as a result of his w/c injury.

What he needs is something which compensates him for his "diminished future earning capacity" as the LC requires...something which the AMA Guides and the 1/05 PDRS in its current form seldom accomplishes.

Doctors are not set up to determine WPI as well as adjust for age/occupation. Under Almaraz/Guzman all they can do is to approximate, i.e., to try to equate the perceived overall impact of an injury on someone and compare that to other portions of the Guides which yield a "better" result which would come closer to compensating for "diminished future earning capacity."
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Re: Almaraz (California) (California) (California) (California)

Postby steelmanlaw on Wed Aug 26, 2009 2:48 pm

on the other hand, if the applicant was a real estate loan broker preinjury, can he now prove "any" loss in diminished earning capacity, and/or do we need to await recovery from recession in order to determine that? as long as we are on "fair and equitable" street, is it a two way street?

neither can a physician deal with this non medical circumstance.

further, the courts of appeal and supreme court in California have not had an opportunity to comment on Almaraz/Guzman, and the bar, especially applicant's bar, is treating it as a fait accompli by virtue of an impaired en banc status. we need to observe traditional standards of stare decisis before determining whether there is anything to stand.
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Re: Almaraz (California) (California) (California) (California)

Postby denyse on Thu Aug 27, 2009 9:26 am

I s/w a rater that told me of the 50 some cases he has reviewed, not one has discussed why the WPI under the Guides specifications is inequitable, disproportionate and not a fair and accurate measure of the IW's PD. The doctors simply say that "Almaraz allows the doctor the option to use an alternative method" , or that "if the Guides' WPI is deemed inequitable by the trier...", or "Based on my 80 years of clinical expertise", etc. The second part is true (can rebut), but doesn't one have to address the core issue of why the specifications are unfair? If they don't, does that mean the report does not merit substantial medical evidence? Since the onus is on the applicant, can the defense proceed to trial with the confidence that the judge must kick the Almaraz version, if they (applicant) doesn't gain clarification?

BTW: I heard of a defense firm that feels if the report doesn't meet the substantial medical threshold that they can ask for reimbursement of the med-legal expense. Beautiful. Not sure they are doing it, but threatening to do so.

My point has been from day one, that the Almaraz case never gave any guidance on what to use for the side by side comparison. They were very specific about not using the 1997 PDRS. Without a standard to rebut , I feel that doctors are crazy for volunteering this opinion. The onus is on the applicant, not the doctor. Without a standard to measure against, and without knowing what the adjusted PD value is, I would simply punt. I would do the same thing at depo unless the applicant can provide a standard to compare with. I have seen the blacklist that one defense firm/rater has put out. Might be signing your own death warrant. I hear of countless complaints from IC's about certain doctors and why they will never use again. It's the applicant's onus.
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Re: Almaraz (California) (California) (California) (California)

Postby steelmanlaw on Fri Aug 28, 2009 11:37 am

actually, regarding the docs who have signed on to the vacuous "unfair" finding, it's more of a "bias brought out into the light of day" list, rather than black list. but, it's also telling of frustration in the medical community, even among those docs previously presumed to be neutral or above the fray. perhaps if we got back to the constitutional separation of powers, whereby legislators legislate and judges judge, this system could work. then, everyone would know what the standards are and would adjust to the realities of life accordingly.

but that's just me.
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Re: Almaraz (California) (California) (California) (California)

Postby stewshe on Sun Aug 30, 2009 11:02 am

steelmanlaw & denyse,

Last week I read an AME report by a very respected ortho who examines as an AME only. In years past I have seen total washout reports from this AME, i.e., "0%." I have also seen 100%.

The injury was a fairly severe upper extremity injury. The WPI crunched out to 8% before adjusting.

The AME commented the impact on ADLs was more severe than this would indicate and, refering to the Guides by page & paragraph, explained why the impact on the patient's ADLs caused the AME to analogize to another portion of the Guides with a similar impact. The AME indicated to do otherwise would essentially be "inequitable, disproportionate, and not a fair and accurate measure of the employee's" impairment, to quote from denyse above. (As I recall the AMEs comment approximated this.)

The bottom line conclusion of the AME was 8% and 10% WPI before running out strings and combining.

The CA rated the report the same as I did and I have already told the CA to send stips "on approval." The carrier has some good, competent, fair adjusters and I think they made a wise decision here.

I might add there was substantial apportionment, which I didn't like, but which was well documented and, as usual, this AME's reasoning was impeccable.
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