Almaraz II Q (California) (California) (California) (Califor

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Almaraz II Q (California) (California) (California) (Califor

Postby denyse on Fri Sep 04, 2009 10:50 am

This is from WCC:

"It is not permissible to go outside the four corners of the AMA Guides" when rebutting the WPI, but "a physician may use any chapter, table, or method in the guides that most accurately reflects the injured employee's impairment."


I am wondering out loud if this is saying one can analogize with an acceptable (under Guides specifications) method, or is it saying you can make up stuff (create your own method). I think the former. I see a lot of analogies that make sense, but what about the ones where the doc uses grip loss of 25% and multiples it against the amputation value (for say a wrist fracture) to create a WPI. That is not using a method within the guides, that is creating a method outside the Guides.

Personally I see this as more unpaid work for the AA's with an unknown outcome. The smart doc create a manageable dispute, or risks the black ball. Once again, the onus is on the applicant, so I am not sure I stick my neck out unless asked.

Lastly, the judge will decide on what is fair? Does that mean that AA's will have more evidence to argue besides substantial medical evidence? What is fair?
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Re: Almaraz II Q (California) (California) (California) (Califor

Postby stewshe on Fri Sep 04, 2009 11:11 am

denyse,

I would say, "the latter," if an adequate explanation is provided, i.e., a chain of reasoning.

Actually, the Guides themselves allow a physician to analogize within the Guides where the impairment in ADLs are not adequately described. (In the past few months I have seen "post-traumatic head syndrome" analygized to "dementia" by a very highly respected AME who explained the reasoning employed so well, the normally conservative CA chose to settle rather than contest it by deposition, etc. Case value increased by $25k! Analogies within the Guides are becomming more and more common, IMHO.)

I read Almaraz II as allowing a more liberal application of the various chapters in the Guides where an analogy would appear appropriate in ANY instance where there is an appropriate analysis and explanation in terms of impact on ADLs.

The decision does not suggest the Guides are sacrosanct, i.e., carved in stone like the 10 Commandants, forever involiate and applied exactly as written. They are subject to interpretation, and I believe there is now substantial encouragement from Almaraz II to do exactly that.
James T. Stewart (stewshe@comcast.net)
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Re: Almaraz II Q (California) (California) (California) (Califor

Postby denyse on Fri Sep 04, 2009 1:09 pm

I agree with the analogy issue. There you are using an alternative AMA Guides method and analogizing for a condition that is new/complex or perhaps not equitable (impact on earning capacity). What I don't get is the amputation example. There is no method to evaluate this. It is picking tables that are not applicable under the guides and mixing them to create a result. It is impossible to verify by an IC. Every case will be argued, assuming the dispute is big. Why provide an opinion that cannot be validated or invalidated? Depos, depos and more depos. Then the appeals. I see the IC's drawing the line in the sand when you start using amputation examples with wrist fractures, and then use a 1997 PDRS grip preclusion (or 2005 PDRS) to modify. Plus, doesn't the significant wrist ROM loss, preclusion and pain that would be basis for objecting to grip loss underr the specifications (16.8a) , be a basis to argue that its use in determining a modifier is also defective? Keep it simple.
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Re: Almaraz II Q (California) (California) (California) (Califor

Postby vampireinthenight on Fri Sep 04, 2009 2:44 pm

True, it invites litigation. We basically are back to a 2 QME situation, we just have 2 opinions from one QME!

The judge will not decide what is "fair" per se, but what is most "accurate". Your guess is as good as mine as to what that is going to mean. Probably accurately asses the impact on ADLs.

The decision is quite clear that a physician can use any chapter or table they want. The catch is the substantial evidence. We're going to have to rely on WCJs to declare the reports non-substantial when they get too creative.

Oh well, it will probably get appealed anyway.
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Re: Almaraz II Q (California) (California) (California) (Califor

Postby denyse on Sun Sep 06, 2009 9:12 am

It is being appealed (from both sides I heard). I heard 2-3 years before Premie decision. The key to me is the AA must rebut the Guides. You can say whatever you want and use whatever analogy you want, but if you think the IC will pull out the check book without a fight, you are crazy. Why is it more accurate? Isn't that a case by case decision by the judge. This is a nightmare for the AA's and courts. Not a bad deal for those on the clock. Under Almaraz I, we have virtually no case law on what was fair/unfair. If the docs comes up with something that makes sense, then that is another story. My whole problem with I and II is that there is no yardstick or standard to side by side. Forget about the two physicians doing two evals on the same day getting the same result, I am looking at the schedule shall promote consistency, unifomity and objectivity. Maybe we should adopt Feinberg's memo, then at least you could ensure the method and opinion is valid (no not). This has a very chilling impact on the AA's bloodline (money), as most of the significant disputes will entail protracted discovery and litigation (appeals) with no compensation. It was already happenning with Almaraz I. When you have no standard, you have no easy (and timely) answer. Then eveyone has an opinion. Stew is the smart one. Good timing.
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Re: Almaraz II Q (California) (California) (California) (Califor

Postby icubitus on Tue Sep 08, 2009 6:58 am

I've always thought that Chapters 1 & 2 were important and always wondered why parties would rely so heavily on a specific sentence (usually limiting and narrowing). I'm waiting for the appeals and/or new legislation. Let's see what happens first. :geek:
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