WCDefenseCA

The California Court of Appeal denied applicant’s petition for a writ of review in the recent case of Kandi Sanders  v. Workers’ Compensation Appeals Board (California State University).  The main issue in question is whether Almaraz/Guzman requires an evaluating physician to stay within the “four corners” of the AMA Guides for a psyche injury.

In a report, dated June 27, 2011, the agreed medical evaluator wrote “[u]ntil such time as (psychiatric impairment) is clarified legally, it is my intention to continue to describe an impairment by the GAF, by the overall impairment in Chapter 14 of the AMA Guides, as well as the 1997 PDRS ratings.”  The permanent and stationary date was in 2011.

The matter proceeded to trial at which time the workers’ compensation Judge awarded applicant 9% permanent disability.  Applicant contested this award, arguing that the PD rating corresponding to her GAF was incorrect, and that the work functions factors of the 1997 schedule are a better indication of her permanent disability.

So what did the WCAB find?  Is the 1997 schedule within the four corners of the AMA Guides if tucked into the flap of the back cover?  Not so much.

The WCJ, in his report, reasoned that applicant has stipulated to the 9% rating and was so bound by her stipulation.  Secondly, the A/G decision limited the rule-bending and impairment-finagling to the four corners, which does not include the work function factors in the 1997 schedule.  The WCAB adopted and incorporated the WCJ’s report and recommendation, denying applicant’s petition for reconsideration, and the Court of Appeal followed suit, rejecting applicant’s contention that the 2005 schedule for converting psyche injuries to permanent disability ratings is inadequate.

Perhaps equating a psyche injury to a shoulder impairment would yield better results?

Your ever-researching blogger recently came across an opinion in which the weight of an applicant’s testimony and a treating physician were pitted against the opinions of a Qualified Medical Evaluator.

Amalia Anaya was awarded 73% permanent disability following a 1997 injury to various body parts while employed by the City of South Gate.  Applicant filed a timely petition to reopen for new and further disability, but after years of litigation and several evaluations, a qualified medical evaluator found applicant to have sustained no new and further disability, to be again permanent and stationary, and to, quiet possibly, have improved since her 2000 award.

Applicant testified that she had in fact sustained new and further disability, and her treating physician (who apparently thought himself a vocational rehabilitation expert) gave the opinion that Ms. Anaya was not trainable to perform other work and could not perform the work previously done because of her injury.

The Workers’ Compensation Judge relied on the QME’s opinions in denying applicant an award of any further disability (applicant had claimed she was now permanently and totally disabled).

In reviewing the decision after applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that “applicant has the burden of proving new and further permanent disability, but her testimony is insufficient to meet that burden.”  Moreover, a treating physician’s conclusions regarding the prospects of training and employability are not substantial evidence – one must retain a vocational rehabilitation expert for such evidence.

Although the WCJ did award some temporary disability, the WCAB denied applicant’s attorney’s request that the attorney’s fee be paid out of the TD.

This is not a groundbreaking decision by any means, but it does provide some foundation for fighting claims of PTD, which can be disastrous for various reasons.  A lifetime supply of temporary disability payments, an attorney’s fee paid up front based on a universal life-expectancy chart, and, as always, those drops of blood in the water that send the rest of the sharks into a frenzy.

WCDefenseCA sends hearty congratulations to the City of South Gate for this victory.

On November 10, 2011, the sun dawned on a very different California.  The air smelled the same, the food tasted the same, but there was something different.  That difference was the sound that filled the atmosphere – the sound of the Court of Appeal standing firm for the law, as it was written, and consequentially for employers and insurers across the state.

In its November 10, 2011 unpublished decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (James Dorsett) (which was subsequently ordered published, thanks to the efforts of the California Workers’ Compensation Institute) the Court of Appeal ruled that Labor Code sections 4663 and 4664 applied to the case at hand.

The facts are fairly straight forward – applicant glazier allegedly sustained an injury to the cervical spine in 2000 while working for employer A; and then allegedly sustained a cumulative trauma injury over the period of November, 2002 through June, 2004 while working for employer B.  Both employers were insured by State Compensation Insurance Fund.

The agreed medical evaluator opined that, although there are two injuries, the cumulative trauma was a compensable consequence of the specific injury, and the two injuries are inextricably intertwined.  However, during his deposition, the AME testified that he would apportion the level of applicant’s disability 50-50 between the two injuries.

The matter proceeded to trial and the Workers’ Compensation Judge awarded application 100% disability, reasoning that the two injuries could not be parsed out, presenting just one single injury.  Therefore, no apportionment applied.

Defendant SCIF petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that an injury could not both be a compensable consequence and a separate injury, and that the Labor Code required apportionment in this case.

The WCAB denied defendant’s petition.

Declining to give into discouragement, defendant then petitioned the Court of Appeal for a writ of review.

The Court of Appeal, in granting defendant’s petition, reasoned that if the doctor can “parcel out the causation of disability,” then separate injuries must be apportioned, even if they become permanent and stationary on the same date.

In this case, the AME testified to a 50-50 split in causation between the two injuries, satisfying defendant’s burden of proving apportionment.

Your modest blogger is an admitted cynic – but it’s mornings like these that irresistibly inject a bit of optimism into everyday life.

I hope my dear readers had a wonderful Thanksgiving.  I wish I had a great decision to show you on this welcome-back-to-work morning.  But, sadly, all I have for you is more pocket-picking of a California employer.

The Court of Appeal recently declined to review the decimation of Bridgestone Firestone in the case of Bridgestone Firestone v. Workers’ Compensation Appeals Board (Ronald Fussell).

Applicant, a diabetic, was a territory manager for defendant-employer when he sustained an industrial injury to the left ankle.  Following two surgeries and the use of a custom ankle brace, applicant eventually returned to work, only to have his condition worsen.  Ultimately, applicant underwent an amputation of his left leg below the knee.

The Workers’ Compensation Judge found applicant to be 100% disabled, and awarded over $220,000 in attorneys fees to his attorney, and COLA payments beginning in 2004 (the WCJ’s award predates the Supreme Court decision on proper calculation of cost of living adjustments).  In doing so, the WCJ rejected the opinion of the treating physician that 40% of the disability was caused by applicant’s “non-industrial non-compliance with activities of daily living …  non-compliance has every thing to do with choices that the patient makes on his own, despite knowing that he is not following the doctor’s recommendations.”

The basis for this rejection was applicant’s testimony that, because he lived in a second-floor apartment and there was no elevator, he had to “hop” on crutches to get up the stairs, and could only use the doctor-recommended wheel chair while actually in the apartment.  The WCJ reasoned that the defendant could have built an elevator for applicant or, in the alternative, relocated applicant.  Therefore, it was all defendant’s fault and no apportionment is called for.

I suppose the image of a cackling adjuster comes to mind, smoking a cigar and smiling sinisterly at the thought of the poor applicant not being able to effectively use his medical equipment.  The more likely scenario, of course, is that applicant said nothing to his doctors, employer or the adjuster until it was too late.  There was likely never an opportunity for defendant to act, because there was no knowledge of a need to act.

Medical apportionment based on applicant’s pre-existing diabetes was likewise rejected, on the grounds that applicant had never sustained trauma to his left ankle before the industrial injury that was the subject of this case.  The opinions of applicant’s treating physicians, concluding that the diabetes had slowed the post-surgical recovery process, did not sway the WCJ or the WCAB.

Before defendant could blink, a simple left ankle injury resulted in an amputation and a 100% PD award.  The only parting advice I could offer from this case is to obtain accurate living conditions information from the applicant, such as where he lives and his domestic set-up.  This can be done through a deposition or through a written questionnaire (although a deposition is preferable).

With this information, it is possible to keep the treating physicians apprised of whether their recommendations are feasible given the applicant’s circumstances.

A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

Yesterday we discussed the use of the Benson decision and how we can break up large permanent disability ratings into smaller (and cheaper) ones.

But what about large periods of cumulative trauma?

Well, look to see if there were any gaps in the cumulative trauma or any periods of disability dotting the timeline of alleged disability.

In the case of Ferguson v. WCAB (1970) 35 CCC 452, the applicant claimed a cumulative trauma, but had a period of disability in the middle of the timeline for which he was off work.  The Board held that, under Labor Code § 3208.2, the applicant actually sustained three injuries:

(1)    A cumulative trauma ending at the time of the specific injury;

(2)    A specific injury

(3)    A cumulative trauma beginning after the applicant returned from disability for the specific injury, and ending with the last day worked.

If you’re faced with a long period of cumulative trauma, try to look for periods of disability.  A theory with some potential, one which I’m not aware of having been tried yet, is to argue that periods off work for non-industrial injuries should serve to break up cumulative trauma into separate injuries as well, akin to the specific injury in Ferguson.

Once you use Ferguson and § 3208.2 to effectively break up the single cumulative trauma into several little ones, write to the Qualified or Agreed Medical Evaluator requesting that each injury be given its own rating under Benson (Benson v. WCAB (2009) 170 Cal.App.4th 1535) and Labor Code § 4663.

Remember, permanent disability indemnity goes up drastically as you climb the impairment ladder.  One of the best ways to bring that impairment number down (as well as the amount the applicant will eventually be entitled to) is by breaking the whole impairment into its individual parts.

Good hunting!

Ready for a discussion of Benson and related authorities that lasts the span of a few minutes?  California Workers’ Compensation allows the defense a few maneuvers here and there to keep things interesting.  Here’s what you need to know about Benson.

Each injury, past or present, gets its own rating and the impairment of an applicant gets broken up into injuries and causes.  (Exception: if there is no way for the physician to parcel out the individual injuries with reasonable medical certainty, then a combined award may be appropriate.)

Pre-SB 899, the rule governing multiple injuries to one body-part was articulated in Wilkinson v. WCAB ((1977) 42 CCC 406).  The rule there was:  if there are several injuries to the same body part that become permanent and stationary at the same time, there is no apportionment and there is one massive impairment rating.

This means that four injuries to a body part that each cause an adjusted 5% disability ($2,760.00 x 4 injuries = $11,040.00) would actually be calculated as 20% disability ($17,365.00).  Mind the $6,325.00 gap – imagine the difference with the higher impairment brackets!

Enter SB 899 and the case of Benson v. WCAB (2009) 170 Cal.App.4th 1535.  Benson held that “each distinct industrial injury [must] be separately compensated on its individual contribution to a permanent disability.”  (Benson, supra, 170 Cal.App.4th at p.  1560.)

Remember to cite Labor Code § 4663 as well, especially subsection (b): “Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.”

If a treating or evaluating physician doesn’t include a discussion of apportionment, even amongst the various claimed injuries, then the report is not complete under subsection (c).  Usually, a letter requesting a supplemental report should do the trick.

So if you have an applicant claiming both a cumulative trauma and a specific injury, invoke Benson and break that claim up into pills a bit easier to swallow.

But that’s not all Benson is good for!  What if you have a claim for a lengthy period of cumulative trauma – one which comes with a QME report of heavy impairment rating?

Video: 

The dramatic conclusion… tomorrow morning.

Last time we covered the state of the law – specifically the state of Almaraz/Guzman and the wiggle room given to evaluating physicians to increase the whole person impairment.   Is there nothing that can be done to curb the inflation of permanent disability?  As a matter of fact, there is.

Your typical Almaraz/Guzman medical report reads something like this:  “The applicant underwent a partial medial and lateral meniscectomy.  Utilizing Table 17-33, this is a 4% whole person impairment.  Taking into consideration the Almaraz/Guzman case, noting his symptoms, Table 15-6 should be used and I would assign him an additional 9% whole person impairment.”

The rating just went from an unadjusted $2,760.50 in permanent disability indemnity to an unadjusted $9,717.50.  Factoring in profession, age, etc. the ratings can go drastically up.  Often enough, these ratings are combined as expressly prohibited by the AMA Guides.  So what’s the solution?

Milpitas Unified School District v. WCAB (Guzman III) (2010) 187 Cal.App.4^th 808 pricks the ever-inflating whole person impairment balloon.  According to Guzman III, an evaluating physician can only deviate from the AMA Guides in “complex or extraordinary cases.”  These are cases that are “new or complex … or the range, evolution, and discovery of new medical conditions.”

In terms of actually performing an Almaraz/Guzman increase, simply invoking the name Almaraz/Guzman is not enough.  Guzman III holds that “[i]n order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.”

In other words, when you’re faced with an Almaraz/Guzman rating, ask yourself the following questions:

1)      Did the evaluating physician describe a condition that is “complex or extraordinary,” and one that deals with a “new or complex case” dealing with the “range, evolution, and discovery of new medical conditions?”  If the answer is no, then the impairment rating as increased by the non-strict application of the guides is not substantial evidence.

2)      Did the evaluating physician “explain why departure from the impairment percentages is necessary?”  If Dr. Ouch! simply says it is based on his experience, then the portions of the report addressing Almaraz/Guzman increases are not substantial evidence.

If one, or both, of those questions is answered in the negative, then the report should proceed on strict AMA Guides ratings only.

This argument was used successfully in a recent unpublished panel decision, where the WCAB held that “the AME has not adequately explained his use of [the tables] for spinal impairment for station and gate disorders, where the Guide specifically states that gait derangement impairment is not to be combined with a Diagnosis Based Estimate method.”

The Almaraz/Guzman increase-happy report can be whittled down, and this is how you do it.

In the near future, I’ll discuss how you can use the arguments to permanently shave off the Almaraz/Guzman increases.  But that is a post for another time.  Good hunting!

So there’s the bad news and the not as bad news.  First, the bad news.

Circling the wagons against the Wild West of permanent disability and waiting for the Court of Appeals cavalry, hoping  for a reversal against the ravages of Almaraz/Guzman, is no longer an option.  The sun has set, no Cavalry bugle will sound, and the latest appeal of Almaraz/Guzman had dried up.  Almaraz has at last received closure from the 5th Appellate District.

The reforms of SB – 899 brought several changes to the California Workers’ Compensation system, most of them very good.  Among those reforms was the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or the Guides, for short), at least according to Labor Code § 4660.  As enacted, there would be one set rule for rating and appraising permanent disability, making Workers’ Compensation liability consistent, uniform, and objective, as called for by Labor Code § 4660.  That was the dream that drew our wagons out West to begin with.  Then, came the troubles…

The joint cases of Almaraz/Guzman, to some extent, did away with this portion of the reform, and brought back the uncertainty that ruled pre-SB 899.  Almaraz/Guzman seized upon the language of § 4660(c), specifically the fact that “[the AMA Guides] … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”  (Almaraz v. Environmental Recovery Services (2009) 74 Cal. Comp. Cas 1084).

According to Almaraz, and its companion case, Guzman v. Milpitas Unified School District, the AMA guides, contrary to the call for “consistency, uniformity, and objectivity” can be twisted and turned to suit the vagaries of “fairness” and “equity,” inflating the whole person impairment rating and exhausting insurance reserves.

Before a series of appeals chipped away at this decision, the only limitation (like limiting a child to all the cookies in the cookie jar), was that the evaluating physician had to remain within the four corners of the AMA Guides, in order to “adequately” evaluate the applicant’s impairment.

So where are we now?  Well, on the final round of appeals, Almaraz and Guzman split off.  While Guzman went on to produce the Guzman III opinion (more on this later), Almaraz is done with.

The bad news is that Almaraz is, for now, the law of the land – evaluating physicians can use any part of the AMA guides to evaluate the impairments of the applicant.  This means using charts for the spine to provide an impairment degree for the knee, combining methods of measuring impairments such as grip loss and range of motion loss (specifically prohibited by the Guides), and whatever else appeals to the doctor’s (and the persuasive letters of the applicant’s attorney) sense of judgment.

Left at that, self-insured employers and insurance companies rightly fear the Almaraz beast that stalks the night – by day, an ordinary man; under the full moon the monster that ravages the country-side of Workers’ Compensation.  Fortunately, there is a silver lining (or a silver bullet?)

What’s the less-bad news?  While Almaraz lets evaluators loose on Workers’ Compensation defendants, Guzman reigns them in with a tight leash.  How to use this silver bullet on the charging Wolfman?  Stop by tomorrow, and you’ll see.