WCDefenseCA

And a good day to you, dear readers!

Your humble blogger recently read the case of K.  v. Caletti Jungsten Construction (it’s kind of a sensitive nature case, dear readers, hence only the first initial.  If you need the full case name for citation purposes, please drop your humble blogger a line.)

The basic story here is that applicant sustained orthopedic injuries and an injury to the psyche in 2011.  While the parties apparently had no dispute to the rating of the orthopedic AME’s report, which resulted in 62% PD, the psyche AME found 11% WPI which rated to 23% PD, but only 15% PD after apportionment.  At trial, the WCJ did not sustain the apportionment analysis of the psyche and awarded a full 23% PD for the psyche to applicant.  When combined with the 62% of the orthopedic injury, resulted in 71% PD.

On recon, defendant pointed out that the AME apportioned 35% of the psyche claim to prior trauma that was non-industrial, and continued to plague applicant.

The commissioners started their discussion by pointing out that “[t]he parties presumably choose an AME because of the AME’s expertise and neutrality … [w]e will follow the opinions of the AME unless good cause exists to find his opinion unpersuasive.”  And there you have it – the AME’s opinions are sacrosanct – only through a very serious flaw in the opinion or reasoning will the WCJ and WCAB disturb the AME’s opinions, and for very, very good reason.

The name of the game is, of course, judicial economy.  There are injured workers who are waiting to get an order to pay TTD so that they can eat.  There are defendants who are paying huge premium increases based on temporary experience modifications because there is claim lingering.  There are injured workers waiting to get a hearing on their medical treatment request so that they don’t suffer permanent (but preventable) injury.   These are real, substantive issues which have legitimate claim on the time and mental dexterity of attorneys, judges, and commissioners.

Instead, we’re dealing with panel disputes!  Which panel specialty is correct? Which opinions should control (PTP or QME)? Is the report late? How much time did the QME really spend during the exam?  The attitude of the WCAB, from the standpoint of judicial economy, is that AMEs resolve all these disputes – from whether the panel issued timely from the Medical Unit to whether that communication was ex parte as contemplated by Labor Code section 4602.3.

So when an AME says the psyche claim is only 65% industrial, there needs to be a good reason to disturb that opinion.  Otherwise, there’s no good reason to go to an AME.

The commissioners awarded the apportionment and reduced the final PD to 68%.

So what’s the big deal? Did the defendants really win anything? A measly 3%?  Well, yes, it is a victory.  This was a 2011 DOI, so if you’re applying the 15% increase for not making an offer of Regular, Modified, or Alternative Work, the actual PD value presents a gap of almost $30k.  But that’s not all! 68% puts applicant just under the cut-off for a life pension.   That means all the headaches of COLA and commutation, not to mention a whole lot more cash.

Your humble blogger sends his congrats on a job well done!