Almaraz and Guzman II Teleconference Call - October 1 (Calif

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Almaraz and Guzman II Teleconference Call - October 1 (Calif

Postby brigham on Wed Sep 30, 2009 9:45 am

Press Release – For Immediate Release

Almaraz and Guzman II Teleconference Call

San Diego, California — [September 29, 2009]
The California Workers Compensation Appeals Board issued its revised en banc opinion in the cases of Mario Almaraz and Joyce Guzman modifying the prior decisions of February 3, 2009. On October 1, 2009, at 11 am PT, there will be a teleconference call involving leading legal and medical experts who will discuss what this decision means, its impact, and how to drive accurate impairment ratings. The panel includes W. Frederick Uehlein, Esquire, Director of Impairment Resources, LLC, Christopher R. Brigham, M.D., Chairman of Impairment Resources, LLC (http://www.impairment.com), Peter Godfrey, Esquire and Amy Lamb, Esquire of Godfrey, Godfrey & Lamb, LLP (http://www.godfrey-law.com) and Barry Ponticello, Esquire of England, Ponticello & St. Clair (http://www.eps-law.com).

The decision seeks to respond to the arguments made by the parties and numerous amicus curiae and modifies the prior opinion to now hold as follows:

(1) That it is the permanent disability rating resulting from the application of the 2005 Schedule that it is rebuttable, rather than the AMA Guides portion of the schedule as previously held.

(2) The party disputing a permanent disability rating has the burden of rebutting that rating.

(3) One method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's whole person impairment (WPI) under the AMA Guides. The decision went on to hold that: “all WPI evidence- including not limited to rebuttal evidence- must be within the four corners of the AMA Guides, although a physician may utilize any chapter, table or methods in the Guides to assess WPI, provided that his or her opinion constitutes substantial evidence.”

The WCAB's decision should result in the vast majority of permanent disability ratings being based on an impairment standard determined by use of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (Guides) in the manner directed by the authors of the Guides. The WCAB removed any doubt that doctors or judges could determine that the Guides were “inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability” (their former ruling) and then use another methodology outside the Guides to come up with a rating. They now must determine the impairment rating using the Guides, the nationally recognized gold standard for assessing impairment.

The WCAB found that a physician may rebut the Guides rating utilizing any chapter, table, or method in the AMA Guides that most accurately reflect the injured employee's impairment. This opens a door for rebuttal but, taking into consideration the full decision, the door should not be open very wide.

First, the judges state that, “we emphasize that our decision does not permit a physician to utilize any chapter, table or method in the AMA Guides simply to achieve a desired result, e.g., a WPI that would result in a permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005.”

Second, the judges state that the method used by a physician to successfully rebut a rating offered by an insurer or employer must meet two criteria.
The first criteria is that the proposed “rebuttal rating” must be supported by “substantial evidence.” This means that the rebuttal impairment rating methodology must be based on more than just one physician’s own experience and clinical judgment. In other words, there must be studies, learned treatises or, at least, a consensus among a significant peer group that the proposed method of evaluation is first, consistent with the intention of the authors of the Guides, and second, that the rebuttal WPI rating offered by a claimant's physician is more appropriate (the preponderance of the evidence).

Thus, properly presented, both by legal arguments and by appropriate medical expert testimony, rebuttal should become a significant hurdle.

What should claim examiners, risk managers, and attorneys do now? Having left the door ajar, history tells us that it is inevitable that the Applicants' attorneys will test the limits of this decision repeatedly pending inevitable appeal to the higher courts. Impairment Resources has previously reported that impairment ratings are wrong over 80% of the time in California and at an average excessive cost per claim of over $15,000. Interested parties, more than ever, should make sure the Guides impairment rating is correct. It is more important than ever to have an expert review every rating received to assure that the mandated rating is accurate.

When rebuttal comes in, insurers should push back hard on attempts to rebut the erroneous Guides rating. Physicians who are truly expert on the Guides should review any rebuttal attempt and provide written evidence to support the adoption of the Guides rating, including commentary on whether the portions of the Guides being relied on for rebuttal were, or were not, intended to be used that way.

The professional staff of Impairment Resources, LLC reflect the nation's leading medical and impairment assessment experts on the appropriate use of the Guides. Impairment Resources (IR) has developed a road map to guide adjusters and attorneys in defeating acceptance of the rebuttal in the determination of the disability payment. IR will prepare expert reports, which can be used to defeat the rebuttal, and it will help attorneys and adjusters ask the right questions and raise the right issues.

Registration for the teleconference call is available at: https://www1.gotomeeting.com/register/256966736

For further information visit http://www.impairment.com or contact Impairment Resources at
619-299-7377. Impairment Resources, LLC provides impairment evaluation services, including expert review of ratings, web-based resources, and training.
brigham
 
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