Almaraz II - Unintended Consequences? (California) (Californ

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Almaraz II - Unintended Consequences? (California) (Californ

Postby cmunday on Fri Sep 04, 2009 10:20 am

Pondering the impact of the "new" ruling.....I have recently encountered a number of Applicant Attorneys using Chapter 14 of the AMA Guides in support of total disability claims. As you all know, however, psychiatric claims were taken out of the AMA Guides and the GAF is used. Chapter 14 addresses work impairment specifically and directly. Four areas are considered: Activities of Daily Living; Social Functioning; Concentration, Persistence, and Pace; Deterioration or Decompensation in Complex or Worklike Settings. First paragraph on page 364 then states: "In the ordinary individual, extreme impairment in only one area or marked limitation in two or more spheres would be likely to preclude the performance of any complex task, such as one involving recreation or work, without special support or assistance, such as that provided in a sheltered environment" (Clearly a description of total disability).

I am very curious what others think especially those legal minds. Seems to me the ruling specifically sanctioning any table or methodology in the AMA Guides supports the use of this approach even though the PDRS does not rely on Chapter 14. A related question is whether one can analogize using the GAF. Example, sleep disturbance with daytime sleepiness impacts behavior and therefore proper understanding of the sleep disorder would allow an analogy using the GAF? Seems to me this approach is NOT specifically authorized. My question is whether or not the reference to the AMA Guides doesn't actually mean the 2005 PDRS. I have not read the decision word for word but my first read I could not see any addressing of this issue. That is, does reference to the AMA Guides implicitly include everything in the 2005 PDRS including the GAF or is the GAF outside of this decision?

It will be interesting to see the unintended consequences once again. And, please, I'm just thinking out loud here as to how this might play out. I do not mean to be advocating for any particular approach nor do I claim to know what the correct interpretation is.

Claude
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Re: Almaraz II - Unintended Consequences? (California) (Californ

Postby stewshe on Fri Sep 04, 2009 10:48 am

Dr. Munday,

I basically agree we need to be looking at the "four corners" of the Guides, which of course includes Ch. 14.

Also, I would argue, and I'm sure many would agree, the "four corners" of the 1/05 PDRS applies as well!

The two sources need to be read together, both from a medical, but also from a legal standpoint.

Thus we should be giving the EE "the best of all possible worlds," at least in theory, given the morass of SB-899, et seq.!

The only good thing about all of this is I'll be retiring at the end of this year, to devote more time to writing and research, since I will not have to deal with specific claims on a day-to-day basis!
James T. Stewart (stewshe@comcast.net)
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Re: Almaraz II - Unintended Consequences? (California) (Californ

Postby vampireinthenight on Fri Sep 04, 2009 2:55 pm

Congrats on your retirement Stew.

If by "best of all possible worlds" you mean highest PD imaginable, I would have to flatly disagree.

Dr. Munday, I think what you describe might be possible, but to apply it in the way you describe, I just do not think it will be deemed substantial evidence. That is, if you can even get over the burden of proving why the other Chapers are inaccurate. The WCAB is clearly looking for some order and limitation to the process. No doubt there will be a lot of test cases, but I would predict the Appeals Board in SF is going to place some substantial restrictions on the more creative approaches.

You also have to remember that the Legislature incorporated the Guides with a certain (although possibly vague) concept of what or how the Guides read. If you completely contort the Guides to get a desired result, you eventually thwart the intent of the Legislature.
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Re: Almaraz II - Unintended Consequences? (California) (Californ

Postby jobmdpsych on Fri Sep 04, 2009 9:30 pm

The psych chapter is not translatable to any WPI number. In fact, the APA specifically wrote a position paper against the idea. So it's a dead end. The only solution is to get a GAF rating through psych if it is an issue.
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Re: Almaraz II - Unintended Consequences? (California) (Californ

Postby cmunday on Tue Sep 08, 2009 9:27 am

I appreciate the thoughts and inputs. Several attorneys have told me they believe the opinion probably was meant to include the entire 2005 PDRS but also clear that it does not state this explicitly. Also, predominant thinking is that there was no intent to allow psych claims to use Chapter 14 instead of the GAF but that this was not specifically stated.

Vampire, how is it not substantial evidence if the AA goes through the four areas of Chapter 14 and the Dr. answers honestly and the end result falls under the category of not likely capable of competetive employment? I'm not sure such an approach will be allowed but I don't see how the argument against it is lack of substantial evidence.

Jobmd - where I've encountered Chapter 14 is ONLY where the argument is for total disability. I fully agree one cannot get to any sort of WPI rating using that chapter. Again, my read of the letter of this opinion is that saying any and all charts or methodologies of the AMA Guides can be used would lend support to using this methodolgy.

I wish the decision had made it clear that it excluded Chapter 14 and included the GAF - it would have given clearer guidance to those of us who are trying to formulate opinions within the confines of the law. With all the talk of consistency (and I am a firm believer that whatever system or methodology we use it should endeavor to be consistent) leaving these sorts of issues unaddressed invites inconsistency. Some will interpret per the letter of the law and others per the spirit. At least I think it's made clear what I have always firmly believed - that brain injury, stroke, etc are to be rated primarily via chapter 13 and not via the GAF. That said, one prediction made by a friend who's proved quite prescient in the past is that any brain injury case will now have a companion psych case added. This creates a somewhat ethical dilemma for the mental health person. To the degree that we opine that the emotional difficulty is "organic" (ie. due to the brain injury) it cannot be added to the cognitive, sleep, etc. However, if we opine that the emotional difficulty is "psychiatric" then it can be added. My approach has been to provide one rating that encompasses all mental factors of disability to insure that the disability is neither underestimated nor overestimated and to avoid the impossible task of separating what is directly from the brain injury versus a secondary reaction to the situation. Typically, this is done using the GAF. My read of the new decision is that this approach is not specifically allowed now.

Claude
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