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Thread Title: Almaraz/Guzman
Created On Monday February 16, 2009 2:29 PM

denyse
Senior Member

Posts: 740
Joined: Jun 2002

Monday February 16, 2009 2:29 PM

I have semi-muddled my way through the recent en banc decisions. Regarding Ogilvie, I feel it's a lot of work for little gain. The sword also cuts both ways for those RTW. Minus FEC for RTW? Future employment is crystal ball stuff.

The other two cases are problematic. Why I am not as odds with the rebuttal theory, I am concerned with the vagueness offered by the commissioners. While they say that the physican is not the trier, the decisions seem to imply that the doctor should attempt to make a comprehensive decision on disability (with and without the Guides). The problem is what standards are the doctor supposed to use as a guideline. In the CTS case (e.g.) the doctor said page 495 governs this issue, but under supplemental opinion said based on the ADL impact it's 15% per arm. Based on what? There is no ADL menu to add or subtract from. 15% per arm exceeds a post laminectomy. It's a guess, and one that is hardly objective based, which is what SB 899 championed.

I don't think QME's should be involved in the compensation decisions, and be told to look for ways to rebut the 2005 PDRS. That's the job of the AA and DA. Does it makes sense that this thought process should be the rule and not the exception. The problem with FEC and work restrictions is that it is a guess. It may be harder to find a new career today with this economy than last year. What happens next year? Can you petition to reduce?

I do believe this is a 8 lane highway and one that will only be limited by self restraint (loss in AME referrals, deposition time spent for docs, unpaid AA work and mega delays in getting a payday) . Doctors that go out of their way to get creative will get blackballed under the AME statute (4062.2). AA's that try and make something out of nothing, will cause protracted litigation (depositions, trial, etc.) and back up the appeals board for 10 years. What this may do in the short term, is get the IC to concede the 3-5% disputes with the PTP and avoid the potential. The average IW will get discharged, get their MMI report and get the file closed sooner than later. This will not create a new stream of referrals to the AA, as this won't be in the psyche of the average worker, unless some firm sets up a trailer across the street from the plant closure.

The good news besides the self policing is that one still must have some objective, anatomic finding to even begin to get involved in the fuzzy science. I don't see a bunch of unwitnessed, soft tissue back strains all the sudden going litigated and having doctors say 30% because they can't do heavy work (at home or work). Plus, what AA is willing to put in the time for a crap shoot.

The key is rebuttal. You must be in the game to rebut. Then it comes down to substantial medical evidence. What is your basis for going from 3% to 15% on CTS. Subjective complaints, no job to return too, etc. Is it really as bad as a knee replacement or laminectomy. To me this is a judge's nightmare. Do they want to listen to the esoteric stories?

My advice to the docs is to have some basis for sticking your neck out. Right now, we have to standard to compare to (Guides). The 1997 PDRS is not a standard of comparision - that was clear in the cases. So what is?? What it comes down to me is, why do you feel this disability is not appropriate? Based on what? Doctor should stick to the facts, unless there is a complex or poorly misunderstood condition. If the AA wants to raise a stink, let them bring in a yardstick to measure with.

For the defense, I say stick to your guns. The rebuttal by definition is one that needs be met by the applicant.

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denyse
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Posts: 740
Joined: Jun 2002

Tuesday February 17, 2009 7:47 PM

what will the DEU do (now)?

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gaiassoul1@yahoo.com
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Joined: Feb 2004

Wednesday February 18, 2009 7:23 AM

rate the report as it is, it is up to the applicant and defense attorney to then prove up their respective reports...it does not change rating, just the perceived value of each level of individual's disability on a case by case basis.

Posts: 45
Joined: Mar 2006

Wednesday February 18, 2009 2:23 PM

That is a good question, especially with the high error rate in medical reports. I am not sure what just rating the report means. It that before or after possible physician errors.

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mkomkom
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Posts: 376
Joined: May 2005

Wednesday February 18, 2009 3:56 PM

I just heard a great story of a judge telling a pro per to continue the matter, and not approve the stips, on a basic back case because "Almaraz" might give them a higher award.

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This is not legal advice. It is the opinion of "mkomkom", who is not even real.

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gaiassoul1@yahoo.com
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Joined: Feb 2004

Wednesday February 18, 2009 5:48 PM

either party has the duty to correct any known physician errors prior to a rating...they call it a cross ex

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denyse
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Joined: Jun 2002

Wednesday February 18, 2009 6:29 PM

I concur. I don't see the DEU advancing discovery now or later, especially to the detriment of the IW.

Posts: 45
Joined: Mar 2006

Wednesday February 18, 2009 6:52 PM

<< either party has the duty to correct any known physician errors prior to a rating...they call it a cross ex >>

I am confused. I thought that a cross examination occured after a rating. Do you mean a deposition of a physician?

I am not sure I understand DEU not advancing discovery, especially to the detriment of the injured? Could you elaborate?

Edited: Wednesday February 18, 2009 at 6:52 PM by ama andy

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Wednesday February 18, 2009 7:17 PM

My threshold point (yes, I know it takes me 500 words just to clear my throat, like other long term presenters in this forum), is that there is a structural defect in the thinking of the commissioners. They are asking the doctors to determine adequacy. Compared to what? There is no standard - certainly not the 1997 PDRS (that was leg'ed out remember).

I feel the first Q in a depo is why do you feel the objective anatomic based method of impairment is not adequate? What standard are you comparing this too. Oh by the way, do you feel the Guides was ever an adequate measurement? Guess what, it is apart of the SB 899. Analogy is one thing, but to say 15% instead of the Guides 3% because of "ADL impact" is hardly substantial medical evidence, and hardly the ammunition an AA, that does not get paid for protracted litigation, requires.

As noted, the employer needs to stick their guns when this becomes over the top.

Mr. Mom's story is disturbing yet predictable. Please make something up.

I don't believe docs should be involved in the compensation disputes. Just the facts.. As Ginger says, these issues are for the legal beagles to develope.

I smell a mandate coming from the Gov, at the same time a major change to FEC that will far outweigh anything Ogilvie gave.

To me, this is more fuel for the damage control experts. For the IW?? I dunno.

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denyse
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Posts: 740
Joined: Jun 2002

Wednesday February 18, 2009 7:24 PM

I never see the DEU challenging methodology. As Ginger says, they rate what is before them. With a 90% error rate claimed, which is almost entirely adverse to the ER, one could extrapolate that a do nothing philosophy favors the IW. Buyer beware.

Posts: 45
Joined: Mar 2006

Wednesday February 18, 2009 7:33 PM

I would disagree. I believe that DEU is trained to apply the AMA Guides and I have seen ratings altered. It is hard to believe that, if the error rate is 90%, that the state raters would issue ratings that were incorrect 90% of the time. DEU may not alter ratings within the DRE range to your satisfaction, but I believe more is done that just taking the doctor impairment and running it out. However it is a big state so perhaps that is your experience in your venue.

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denyse
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Wednesday February 18, 2009 7:58 PM

We digress.

My big Q is still whether or not you feel the commissioners put the cart in front of the horse. How can a doctor determine whether a rating under the Guides is adequate or not? Based on what? Just because won't have much of a shelf life.

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mkomkom
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Posts: 376
Joined: May 2005

Thursday February 19, 2009 9:48 AM

One thing I noticed, and I believe is consistent throughout Almaraz 3-4 times is the threshold language of, "inequitable, disproportionate, and not a fair and accurate measure". Sentence structure makes me think all 3 (or 4) conditions need to be met. Is there a difference between them? I assume so, or why else list all 4?

So, although the first depo question may be whether the rating is accurate, I think the follow ups should question whether it is disproportionate. Compared to what, other cases, other body parts?

Not sure if a doctor should even comment on the inequitableness & unfairness. For now, I am thinking those issues need to be found by a judge and can really only be done at trial.

-------------------------
This is not legal advice. It is the opinion of "mkomkom", who is not even real.

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Thursday February 19, 2009 2:21 PM

Well put. I don't think you need to get into an esoteric debate. Just point out the objection and cite the applicable challenge in the Guides. I would not ask a doctor what reference or source he is using to determine the inadequacy, or why he/she feels they can analogize and/or why they feel the anatomic objective finding should not be used. Let the opposition build their rebuttal theory. I would also say to keep an open mind and look at the dispute value. Prep the case the best you can for meaningful dialogue with the employer or with the applicant (if you are the AA).

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mkomkom
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Posts: 376
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Friday February 20, 2009 4:24 PM

I agree with you. I certainly will not be getting into any esoteric debates. A problem I see is doctors addressing AMA and then doing whatever they want with the Guides based on analogy. You know what will happen. They (some doctors) will use the wrong chapter, wrong charts and then leave it up to the defense to depose and try to clean it up, leaving everyone with 2 possible AMA ratings, one based on AMA and one based on fairness.

I have seen a "response" from a physician who was involved in the aforementioned cases but who I will refrain from naming at this time. He sees the opinion as allowing a jump to DRE V with or without alteration of motion segment integrity. He suggests that a loss of 25% capacity for lifting, carrying, etc. for an UE should just take a 25% UEI (15%WPI). So the problem I see developing is not necessary a deviation from the Guides themselves, but a distortion of the principles of the Guides to achieve a certain result.

On a side note, I hate citiations from other jurisdictions. Are they informative? Sure. Should they comprise a third of the decision? No. Should they be used to rest the foundation of CA law upon? No. I'm curious, should I start citing New Mexico law in my recons?

Also interesting is the assertion by Almaraz/Guzman that rebuttal can work both ways. I think defendants know how likely that is. Let's look at some examples of the disparity of treatment under a rebuttal scenario as cited in Almaraz:

p.39 (citing Nielsen) In support of raising the award. The permanent disability rating, "...is not rationally related... therefore, arbitrary, unreasonable and not supported..."

p.41 (citing Lewis) In support of lowering the award. "The basic disproportion of the award at bench to any proven disability is so clear as to compel our intervention... award is so disproportionate to the disability and the objectives of reasonably compensating an injured worker as to be fundamentally unfair."

Does this sound like the same standard to you? Rationally related vs. fundamentally unfair?

-------------------------
This is not legal advice. It is the opinion of "mkomkom", who is not even real.

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Friday February 20, 2009 9:09 PM

I am afraid it is game on. Let's see who wants to play. Like I have already said, I will never advise a client to ever use a doctor from left field as an AME. I hope doctors are ready for this (no future referrals).

Where in the Guides, PDRS, or case law does it suggest that docs are supposed to create a new subhead. Just the fact mam.

I say if the disputes are like the Oglivie issue (minimal), then Case Management 101 it. If they are gargantuan, then make them work. There is no standard for a doctor to compare to, when asked to describe why it is unfair. This is a DA bonanza, which if one looks at the commissioner make-up looks suspect. Did I say that?

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cmunday
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Posts: 7
Joined: Oct 2006

Saturday February 21, 2009 10:54 AM

Denyse et. al.

As one of the Drs. in the system (and hoepfully not one described as "some" Drs) I have always maintained that I want to comply with the law not create the law. That is, give me a framework, ask me questions, and within the limits of my expertise I will do my best to answer them. What worries me is Almaraz/Guzman seems to have replaced the roadmap with almost a blank page. I can honestly and legitimately describe disability in varied ways with varied implications. So, do I take the opportunity now to insert my own bias into this process? I, for one, will try not to do this even when I believe I'm right. This is partly because I've seen the chaos when we get multiple Drs. inserting their own biases into the process - that is, if it's justified for me to do it I can hardly complain when others with different biases also do it.

So, my advice to my colleagues right now is to stay in "response mode". Let the parties ask the questions and we'll answer without asserting that any particular legal theory is correct. Maybe sort of an expansion of which rating schedule is correct. I'll rate via both (1997 PDRS and AMA) but always state that I take no position which is correct according to law. (I was recently asked in a cover letter to rate via the 1997 rating schedule if I deemed it appropriate - seemed to me I was being asked to make that legal decision). I would ask the referral parties not to attempt to make the Drs. into adjudicators. I am amazed when I am asked to provide an opinion as to whether some employer action was a good faith personnel action or not and further had some angry responses when I declined to offer an opinion. We as Drs. are going to have to resist the pull to ascribe to various theories of disability put forth by both sides, while simultaneously trying to adequately and impartially describe disability. Walking this line is not going to be easy.

Claude Munday

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Saturday February 21, 2009 1:43 PM

Well put doc. As noted, those that don't heed your advice will be off the short list (AME's). Unless you feel there is a new, evolving or complex medical condition that you can analogize withr, I say report the facts as the Guides suggest. Any other method is advocacy.

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denyse
Senior Member

Posts: 740
Joined: Jun 2002

Sunday February 22, 2009 10:22 AM

Here's a quote from Brigham in Friday WCC article:

"When you remove an objective, consistent standard as a starting point, you introduce the opportunity for more errors," Brigham said. "I think there was a clear legislative mandate with (Labor Code) 4660, which, from my perspective, was not adequately considered in the decision. How this differs from other jurisdictions, is that in California, we have the process to take the impairment rating, to do the adjustments within the PDRS, with the adjustments with future earning capacity and the occupation and age. And although not perfect, at least it provides a more consistent process for defining permanent disability".

When doctor say the impairment is ""inequitable, disproportionate, and not a fair and accurate measure", they become advocates, as their role is the first step in the process of evaluating the exposure. Does a doctor really understand the rating process, or should they even be aware (own a PDRS manual). e.g. psyche impairment goes up 40% for FEC (before age and occupation", so it is presumptious to say the product is not accurate until you see where you end up. That is a judge's job.

Please review the comments to the article, especially the part on new and further petitions, malpractice if you don't ask for rebuttal (on every case), and malpractice on the defense if they don't fight tooth and nail (on every case). The costs will be gargantuan and the delays will back up the courts for 10 years. Was this the legislative intent of SB 899, as Dr. Brigham refers to? I am baffled by the commission's logic on this one. Some conspiracy theorist have argued intentional - I dunno. I think the Gov needs to intervene ASAP before this spirals out of control. And lets get the FEC fixed while we are at it. This decision clearly benefits the damage control specialist, and places an unfair burden (finanically) on the ER of California. Payday for the AA and applicants? Too many ifs to suggest that. So who wins?

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