Sources for Almarez 2 (California)

[spreare]

Hoping someone can advise where/what are the best sources for doctors to get most fluent w/ rating according to Almarez 2 ??
Thanks in advance!

[denyse]

There are none. Almaraz II is a legal issue and ultimately deferred to the trier of fact. We have no case law on what is “most accurate”, but the decision does place a huge burden on the rebutting party to overcome the presumption affecting the burden of proof by a preponderance of evidence. My interpretation of AG2 is as follows:

1. 4660(c) provides that the “schedule…shall be prima facia evidence of the percentage of permanent disability…” PDRS is presumably correct. This is a rebuttal presumption affecting the burden of proof.
2. The party opposing the PDRS rating must thereby disprove the assumed fact by a preponderance of evidence.
3. Does allow a physician to utilize any chapter, table or method within the 4 corners of the Guides that “most accurately reflects” PD.
4. Does not allow a physician to use any chapter, table or method to simply achieve a desired result.
5. The opinion must constitute substantial medical evidence and the opinion must set forth the facts and reasoning that justify it.
6. The WCAB is the ultimate trier of fact.

LC 4660 (b) (1) provides that the WPI component of the rating schedule be rooted in the AMA Guides (page 22 of the decision). That means all chapters including 1 (Conceptual Framework) and 2 (Practical Application). This was also referenced in the decision (page 20). To this observer, this means the opinion should rely on scientific evidence and prevailing medical opinion. Where evidence is lacking, develop consensus view. Chapter 2 discusses the need for consistency. Remember the old 2 docs reviewing the same patient should reach a similar conclusion bit.

So the big Q I have is what evidence do you have that would lead us to conclude that your alternative method “most accurately reflects the injured worker’s impairment”? Why is this more accurate than the 38 year old body of work, that was first written “in response to the public’s need for a standardized objective approach to evaluating medical impairment”? To this observer, this is the first test you must pass. In other words, you have major thresholds under the en banc decision and the Guides' applications to pierce. This to me is not about cherry picking a few raw facts or tables to put forth an alternative rating for the judge to pick. Your opinion must be based on science and prevailing medical opinion AND must be so persuasive that it overcomes the preponderance of evidence (Guides specified rating is prima facia evidence). This is about science not creative writing

The decision does not mandate a party to rebut. As such, as a doctor, why stick your neck out. You are not the rebutting party. Have you not seen the blacklistings? I would become very familiar with chapters 1 and 2. Ever chapter from 3-17 refers back to these two critical chapters. So is your opinion ready for 7th Edition? Then why does it most accurately reflect the IW's impairment. Personally I don't see the case being overturned, but I see built in appeals galore, with 5 hour deposition and a lot of unpaid work for the AA.

[theAxe]

Dr. Feinberg who was an AME involved in one of the original cases has given the this some thought and put together some interesting information on what should be considered, why and how...

Here's a link to his web page on this issue: http://feinbergmedicalgroup.com/Articles.aspx

Good luck.

[denyse]

Death Wish 4 or is it 5? Science not Fiction. Think depososity.

[feinberg]

It is too bad this forum does not include the actual names of responders. Steven Feinberg, MD