Archive for January, 2014

Unpublished COA: Guzman Ratings Not Just For Complex or Extraordinary Cases

January 6th, 2014 No comments

UPDATE: As of 1/15/14, this case is now PUBLISHED and citeable.

Hello, dear readers!

Welcome to the first full week of 2014.  Vacationers are returning to clog up our commute, our co-workers are filling the cubicles next to ours, and, in the most merciful of small mercies, all the kids are returning to school.

So, what better way to start off this full week of 2014 than to bring you another disappointing (yet, blessedly unpublished) opinion from the Court of Appeal on the breadth and scope of Almaraz/Guzman.  The case is that of City of Sacramento v. WCAB (Arthur Cannon).  The facts are fairly simple as well: Mr. Cannon sustained an injury to his left foot, plantar fasciitis, which does the evaluating physician found had no ratable impairment.

However, in considering the impairment under the Almaraz/Guzman case, which is a favorite among the defense community (right?), the AME provided a 7% whole person impairment, based on “having a limp, despite the absence of any arthritic changes about adjacent joints.”

See, defendant Sacramento sought to have the A/G rating rejected because plantar fasciitis is not “complex or extraordinary.”  The Workers’ Compensation Judge agreed, and elected to use the straight rating.  (Here’s a fun fact: if you are at a table with nine of your friends, odds are that at least one of you will have plantar fasciitis at one point in your lives.)

On reconsideration, agreed with Mr. Cannon, however, reasoning that the injury does not have to be complex or extraordinary to warrant an A/G rating.  Unfortunately, on appeal, the COA agreed.

The COA reasoned that Guzman III wasn’t LIMITING the use of alternative ratings to complex or extraordinary cases, but just providing another scenario when A/G should be used.  Specifically, “the Sixth District was using the term ‘complex or extraordinary cases’ to describe ‘syndromes that are “poorly understood and are manifested only by subjective symptoms,”’ which the AMA Guides do not, and cannot, rate.”

The thrust of the problem is that the AMA Guides might not provide a rating for conditions that manifest themselves only subjectively.  But is this a problem?  Surely the writers of the AMA Guides had at least some experience with medicine and treatment… they knew these conditions existed and, for whatever reason, did not want to provide impairment rating.

But, that being said, your humble blogger is with Sacramento on this one.  When the Sixth District tells us that the Guides intended to allow physicians to deviate from strict interpretation of the Guides in certain cases, and in THOSE complex or extraordinary cases the Guides allow for some sort of deviation, what else are we to think?

Hopefully, we’ll get some sort of authority soon that will effectively limit the application of A/G.  Right now, the bar is fairly low for performing an alternative rating and having it stick, and, as common as people with plantar fasciitis, alternative ratings result in increased WPI.

Now, bear in mind, if any applicant’s attorney waves this case in your face, you can point to Rule of Court 8.1115(a), but it is not a pleasant thought to know that the inclination of the WCAB is to allow an A/G rating for any reason.

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2007 Wood Chipper Death Results in Employer Fraud Discovery

January 3rd, 2014 No comments

Welcome back, dear readers!  2013 is gone (though not forgotten) and 2014 is here to usher in a new era of prosperity, joy, and peace… or maybe just more of the same – we’ll see!

One wonderful way to kick off the new year is a story about Jose Luis Guerrero, who, through his company Jose Martinez Tree Service Inc., under-reported more than $2 million in payroll over four years (March of 2005 to March of 2009).  He reported primarily clerical workers to State Compensation Insurance Fund, but his genius plan began to unravel when someone at SCIF noticed claims for a serious car-crash injury, and, later, the death of one worker after he FELL INTO A WOOD CHIPPER.

Does that happen a lot at your office, dear readers?  In my experience, most clerical workers are trained in avoiding the wood chipper that most offices place between the copy machine and the office fridge.

After a thorough investigation by SCIF and a prosecution by the District Attorney’s Office, Mr. Guerrero plead guilty to several counts of evading taxes, making fraudulent statements to reduce premiums, and making fraudulent statements to obtain or deny compensation, as reported by KFI AM.

It also appears that Mr. Guerrero plead guilty to possession of an assault weapon, so if you suddenly stop receiving these blog posts, you’ll be able to put two and two together.

Now, your humble blogger is not suggesting that Mr. Guerrero’s failure to properly report the nature of his business and the number of his employees lead to the anyone’s death or injury.  Quiet the contrary – by fraudulently avoiding costs there should have been more money available to provide safety equipment and a less hurried work schedule.

But, what your humble blogger is curious about, is who drafted this policy and who sold him this insurance?  We’re talking about a business called Jose Martinez Tree Service, and there is a huge clerical population among the employees?  Obviously, the fault lies with the now-convicted, but SCIF, like every insurer, should regularly make sure that whoever is selling its policies engages in due diligence.

Welcome to 2014!

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Happy New Year!

January 1st, 2014 No comments

Hello, dear readers!  Your humble blogger wishes you and yours a happy new year.  May 2014 bring you happiness and prosperity.

This is going to be a good year… your humble blogger has a feeling about it.


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