WCDefenseCA

Happy Monday dear readers!

Do your humble blogger a favor and crack open your AMA Guides!  Turn to page 544 and look at Table 17-31.  Notice that loss of cartilage intervals in the knee yields significant impairment with total loss yielding 20% WPI!

That’s a lot, and a 55-year-old loader with bone-on-bone in a knee might get up to 39% PD ($56,260).  Now imagine the issue is the same in both knees and your applicant attorney will be arguing that the two knee impairments should be added instead of combined and we’re now in life pension territory.  That’s a lot of money for PD!

Now let’s explore the future a bit with this article from Uconn.edu where bioengineers have already regenerated a rabbit’s knee, with all eyes towards eventually implementing the same procedure to regrow a human knee’s cartilage.  Speaking only of dollars and cents and not of the general obligation to provide medical treatment, it seems like such a procedure would likely be a win-win: the injured worker recovers quality of life and functionality, and the employer can avoid the massive PD liability that comes with worn-out knees.

It certainly gives cause to be optimistic, but it also raises another question – what is California doing to make sure that its workers’ compensation system keeps pace with development of medical procedures?

This blog has mused before about what the future would look like when dangerous and repetitive work is automated, and the use of exoskeletons to blunt the effects of cumulative traumas, and even challenging the presumption of permanent total disability due to loss of eyesight as per Labor Code section 4662(a)(2) with the use of cortical prosthesis.

Would the AMA’s Table 17-31 still apply if lost cartilage could be regenerated with a medical procedure?  If I were an applicant attorney (perish the thought dear readers!) I would certainly argue that the cartilage is still “lost” even if it is ultimately regenerated, but, realistically, if function and activities of daily living are restore, in whole or in part, shouldn’t the permanent disability be reduced?

The legislature, when it gets bored enough, will get back to yet another reform of workers’ compensation.  When it does, I hope we can encourage our fearless leaders in Sacramento to incentivize the authorization of such restorative procedures by reducing the permanent disability exposure forced upon employers by a growingly archaic method of rating impairment.

For example, what about an amendment to Labor Code section 4662 that replaces “conclusively presumed” with just “rebuttable presumption” and a subsection (c) that allows the defense to rebut the presumption by introducing evidence that a medical procedure has restored some or all of the functionality?

One can only hope, dear readers, one can only hope.

See you on Wednesday!