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!