Almaraz & Can of Worms (California)

[davidd]

Dr. Chris Brigham, in a recent public telephone conference, raised some very pertinent issues with Almaraz.

I have copied them here, with Dr. Brigham's permission, to further the debate and get folks thinking about the practical impact of this decision. I hope folks jump in on this discussion and share thoughts...
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Who, when and how is it determined that a Permanent Disability Award is inequitable or disproportionate?

Who, when and how is a finding of “fairness” made, the precursor, according to the court to an allowance of Guides rebuttal evidence?

What is an adequate standard of evidence to be admissible for rebuttal of the Guides?

How does one alternatively calculate Permanent Disability?
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I will go out on a limb right now in the interests of furthering public discourse over the issues - the WCAB made the correct legal interpretation of LC 4660 in stating that the AMA Guides portion of the Schedule is rebuttable. Nothing in 4660 says otherwise. LC 4660 simply says that the Guides shall be incorporated, and that the Schedule is prima facie evidence (which by definition is rebuttable). So, in my opinion, the Board correctly interpreted the application of the statute.

Dr. Brigham in his conference, opines that this will influence other jurisdictions that rely on the Guides. I disagree - this is a very statute specific interpretation and other state statutes regarding the Guides are likely very different.

But, Dr. Brigham raises more important consequences of this decision that will produce problems down the road - what is the quality of evidence sufficient to rebut the Guides? Is 'opinion' good enough (in which case why bother with any reference to the Guides other than "incorporation")? Or does it need to be "substantial" and supported by some science (something more than subjective complaints)?

And, doesn't Alamarz place the physician in the position of a trier of fact? Or does the physician simply offer alternatives and let the Board or court make the determination? How do we separate these functions?

I hope folks jump in on the debate, and I hope also that Dr. Brigham likewise offers more insight in to his opinions.

And remember - keep the debate civil!

[rbaird]

I have still not fully digested Almaraz, but it is clearly intended by the Board to extensively discuss and refer to the manner in which other states, which have considerable experience with the AMA Guidelines, handle the vexed issue of discretion and substantiality of evidence. In my opinion, the legislature was sold something of a bill of goods, the illusive prospect of reducing inflated permanent disability costs by a return to "objectivity". Had there been a political willingness to adjust the benefit rate to an economically realistic level, there would not be the increasingly elaborate attempts to evade the results of PD evaluations applying the AMA Guides. We have had the benefits of "reform" for long enough and the burdens a readily apparent. The evaluation system is a farce. The attempt to micromanage treatment expense by administrative fiat and schedule is inefficient at best. I am glad I chose to retire a couple of years ago because I don't like what I am seeing. I thought it interesting the Board cited Lewis (44 CCC 1138) with approval although the question of whose discretion may be applied remains open. A can of worms, indeed.

[samcat]

In my view, the WCAB was absolutely incorrect in its decision.
While the PDRS can be rebutted, I believe that it can only be rebutted in the aggregate and not on an individual basis. What may be right or wrong with Ms Almaraz or Ms Guzman is not relevant. If you can find something better, in the aggregate, other than "incorporating the discription and measurements of physical impairments and corresponding percentages of impairments published in the AMA 5th(as juxtaposed to the entirety of the AMA Guides)" have at it.

Why am I saying this?
Well, when one reads 4660(d) and you are confronted with the mandate that "the schedule shall promote consistancy, uniformity and objectivity", you create the antithesis of that charge when you allow each individual to rebut the schedule with his/her set unique set of circumstances.
But lets look for further support in the California Constitution where you find the intent of our workers compensation system requires;
a. Establishing who gets what and how much via "plenary authority vested in the legislature".
b. Mandates that the system "shall accomplish substantial justice in all cases expeditiously"
Once again, the interests of Ms Almaraz and Ms Guzman are not relevant even if, in their particular circumstances, it might be inequitable. Also what they would have gotten under the old system is not relevant as well, as under the concept of plenary authority (as harsh as it sounds) the legislature giveth(ala ab749) and they also taketh away(ala sb899). If the political crystal balls are correct the hammer of plenary authority could very well be swinging a different way in just less than two years from now.
The WCAB created utter and complete chaos in this decision and its rational flies in the face of the statute and the constitution. While there is no sure thing in the world of appellate litigation, at the end of the day I believe that this case will be reversed.

[davidd]

Hmmm - all very good points Samcat!

But I guess the opposite argument would be that 4660(d) says "schedule" shall promote, which may be different than the data that gets plugged into the schedule.

Rbaird makes a poignant point as well. In my view, the entire system is incorrectly designed as it rewards negative behavior, but we must deal with what we are dealt. Onward to higher authority I guess.

[denyse]

There is no standard for a doctor to reference against when deciding fairness. [e.g. Query: does a doctor know that the WPI goes up 40% after FEC adjustment for psyche? If not, how does he/she know the bottom line (after adjustment) is fair/unfair]. This is a huge boost for defense attorneys, who have been hit hard since SB 899. I don't feel so for the AA's. Lots, and I mean lots of work they don't get paid for with questionable results. Don't they have to challenge every case or face the risk of malpractice. Won't this back the courts up 10 years? So how does this benefit the IW? Now let's look at how the employer fares:

Here is the major problem I see with all of the above. This comes from a recent conversation with a reinsurer. Let's say that you have a post partial lateral menisectomy and arthritis (3% WPI). The doctor, like one quoted in Guzman/Almaraz, feels he needs to create a new subhead on fairness (why?). He says, because the patient can't golf, ski, or do any torquing activities REALLY impacts ADL's and that he read in the Planet Mars Journal Of Medicine where a doctor felt that this condition was more accurately defined as 50% WPI because of functional blah, blah, blah limitations. The case is now 3 years old, and the carrier has calculated the employer's dividend a year and a half ago, and now it's the carrier's money. The DA calls and says the split is 27%, and the demand is 20%, and states that the WCJ hints he likes the sound rationale. He really, really recommends we settle. Query: How do you reserve for this a year and a half ago ? Reinsurers need predictability in order to manage finances. My friend told me that the en banc decision will have, what little reinsurance market there is in California, fleeing for the hills, leaving the carrier with taking the loss from cradle to grave. As such, the carrier will now have to use the new case law to reserve for probable outcome (what's that?), and be able to justify the dramatically HIGH increases in reserves and resultant premiums based on the adverse loss development. In other words, they won't have to make stuff up (like the docs). The result is the WC insurance premium will skyrocket in a state where it's already a state that businesses consider hostile (regulatory). Was SB 899 enacted to increase costs for the employer? I feel we will see more and more companies moving out of state at a time when record unemployment is occurring.

This is a horrible, myopic decision that requires the Gov's intervention (AMA Guides presumptive). Fix the other parts of the equation (FEC, other adjustments, PD rate, etc.) We need to provide those who allow WC to operate in this state predictability. As Jake says, this is an 8 lane highway. One of the worst decisions I have seen in 24 years when it comes to destabilizing the insurance market. One that some might say is fragile at press time.

[MHarrisLaw@verizon.net]

Why blame the WCAB for their decision? The fault lies in using a reference work that is unscientific, not relevant to evaluating work disability, not consistent nor objective. The solution lies in creating a rating schedule that uses objective measurements and work guidelines, and modifies based on relevant criteria.
Why keep trying to make the AMA Guides work? It just does not.

[kombergchiro]

Tis is an interesting topic, with several aspects to it. First, are the AMA Guides scientifically based enough that the ratings performed by the physician will be "evidence-based" and objective? The answer is no. First, it should be noted that each chapter was written and edited by separate groups. There is a singular lack of continuity throughout. Second, although the Guides indicate methods by which impairment may be determined, even the examples provided do not consistently follow the methodology provided. A very good example of this is the SLR validity test in Chapter 15.

The conclusion, as other have mentioned, is that the Guides are inconsistent and should not be the basis of determining impairment.

That being given, we still are mandated in their use.

Next, please note that they are Guides. Their use is to determine "whole person impairment", i.e., consider the effects of the injury on the person as a whole, not simply injured body part(s). It is extremely logical and well documented that two individuals with similar injuries will react to and recover from the injuries at sometimes wildly different rates and levels. Therefore, determining impairment should take into account the individual circumstances and not use a flawed cookbook to determine an impairment level. This was the purpose of including an assessment of ADLs. However, the Guides provide no specific indication of how to determine impairment based upon difficulties in ADLs, other than in Chapter 15, DRE method, where they are referenced in placing an impairment within a range.

Clearly, there must exist a method by which the individual is considered, rather than as simple body parts. In following the spirit of the AMA Guides, there are numerous references to support consideration of the "whole person". The WCAB, in Almaraz/Guzman took the appropriate course. It is now up to the examining physician to present a cogent, logical reason why the AMA impairment does not accurately reflect the impairment, if that decision is invoked. It is then up to the trier of fact to determine if this meets the necessary requirements and the AMA portion of disability is, in fact, over-ridden.

[denyse]

First off the burden is with the applicant. Why any doc would stick their necks out is beyond me. One rater/DA already has a blacklist out there. I have seen closed to 30 opinions on Almaraz and not one report states why the WPI by the Guides is unfair. They simply say because Almaraz says you can rebut then they can. The fundamental issue is what is fair. The case specifically said you can't use the 1997 PDRS. So what are you using as a yardstick? It looks low? I don't think any of the reports I have seen merit substantial medical evidence and don't address the fundamental Q. What are you basing your fairness theory on? The same rater/DA has intimated that if the report is not substantial evidence then you can seek reimbursement. The cases are now all in stalemate. Only ones getting paid is the CE and DA. DA's will start to have 4-5 hour depos on what is fair or unfair. They will work on 2 cases a day. AA's won't get paid for 2-3 years, maybe longer under appeal. The question I have is do you try a defective opinion, or is the onus on the defense to make sure a WCJ doesn't rule liberally??? A bloody mess.

I advise docs not to get involved, or fear retribution by the employer (no more AME's). Let the board send it back or let the AA make his/her case. Then simply ask what statute, case or reference material discusses the fairness standard. If they can't produce anything punt to the trier. Creating subheads or fiction is the kiss of death. It is not the doc's fault and they are not the trier.

[kahanamoko]

One can blame our legislature for creating this gigantic mess. I often fall into the trap of blaming applicant attorneys, then I remember that they are simply following their avaricious nature. This problem could be easily fixed with repair legislation, if our legislature wanted to clean up their mess. Their failure to do so makes on wonder why. Do they hold out hope, one way or the other, for the current appeals? Are they afraid any change in the current statues will look as though AA's were right and create more headaches? The fact that most agree on is that the Labor Code has become increasingly burdensome over the last 20 years. It seems like a natural outcome that legislatures will increase the size of legislation as years go by. Look at our income tax system. Look at just about any other statutory system. Increasing in size annually. And each time we change the rules, AA's do what is in their nature and look for every loophole they can find. It's what they're paid to do and they would be performing malpractice if they failed to find the loopholes. So, draft legislation which is clear and unambiguous, yes? The problem is that most of the people drafting this legislation are not experts in comp. SB899 was drafted overnight, and it shows. In the meantime, we wait months and years to increase PD, per statute, because the Governor wants to take time to review any increases. Time which was not taken when SB899 was shoved down our collective throats. The AMA Guides was bootstrapped into our Labor Code without sufficient review and analysis. Why? Because, we assumed, it worked in other states so it would work here. But they couldn't leave well enough alone and had to go about bootstrapping more stuff onto the bootstrapped AMA Guides. Schedules. Schedules which fail to address all body parts. Schedules developed without sufficient review and analysis. Why? Because the Governor said it was a "Crisis!!". Call anything a "CRISIS" and a politician can get people excited and can ramrod legislation through. It's a historical fact and one which Schwarzennegers advisors knew too well.
Can we please get someone in Sacramento to fix this statute? Can we please get someone to fix the situation created in Ogilvie? Can we get them to address the mess created by the MPN issues?

[davidd]

Kahanamoko - tell this to Martin Brady of CCWC! See his opinion here: http://www.workcompcentral.com/signup/news/index.php?fa=column&article_id=340b85c6e967e13c1d49372582e4bb9cj