The last word has still not been spoken in Almaraz/Guzman. Both Milpitas Unified School District in Guzman and SCIF in Almaraz have filed writs of review with the 6th and 5th districts, respectively, while the California Applicant Attorney’s Association filed friend-of-the-court briefs in response to Almaraz/Guzman II. On February 23, 2010, the 6th District Court of Appeal granted the employer’s petition, but they denied the stay of the Almaraz/Guzman decision. As such, the AMA Guides will remain rebuttable while the appeals are pending.
Oglivie
This case is also still on appeal. Both Ogilvie I and II outlined how to rebut the diminished future earnings capacity portion of the 2005 PDRS, but in Garcia v. Hinrichsen, the Panel Decision remanded the case to the trial judge to consider the Montana factors. These include the applicant’s ability to work, the age and health, the willingness and opportunities to work, the skills and education, the general condition of the labor market, as well as the employment opportunities for persons similarly situated.
Penalties
The California Supreme Court in Ramirez v. Drive Financial Services has listed 9 factors that judges must consider when determining whether a late payment is reasonable, or whether penalties are warranted per Labor Code §5814. The factors are as follows:
• Evidence of the amount of the payment delayed
• Evidence of the length of the delay
• Evidence of whether the delay was inadvertent and promptly corrected
• Evidence of whether there was a history of delayed payments or whether this was a solitary instance of human error
• Evidence of whether there was any statutory, regulatory or other requirement (e.g. an order or stipulation of the parties) providing that payment was to be made within a specific number of days
• Evidence of whether the delay was due to the realities of the business of processing claims for benefits or legitimate needs of administering workers’ comp insurance
• Evidence of whether there was institutional neglect by the defendant, such as whether the defendant provided a sufficient number of adjusters to handle the workload, provided sufficient training to its staff, or otherwise configured its office or business practices in a way that made errors unlikely or improbable
• Evidence of whether the employee contributed to the delay by failing to promptly notify the defendant of it
• Evidence of the effect of the delay on the injured employee
Tuesday, July 28th, 2009
Topics
Almaraz/Guzman and Ogilvie Under Appeal
End of the Wilkinson Rule
LeBoeuf
Repeal Labor Code §139.5
Almaraz/Guzman and Ogilvie Under Appeal
On April 6, 2009, the WCAB on its own order decided to reconsider its en-banc decisions from February 3, 2009 in both Almaraz/Guzman and Ogilvie. Both applicant and defense counsel were allowed to submit amicus briefs until May 1, 2009, with rebuttal arguments to be filed by May 21, 2009. Almaraz/Guzman allowed the rebuttal of the AMA Guides by showing that a PD Award based on the AMA Guides would be inequitable, disproportionate, and not a fair and accurate measure of the applicant’s PD. Ogilvie allowed the rebuttal of the Diminished Future Earnings Capacity portion of the 2005 PD Rating Schedule under Labor Code §4660.
End of the Wilkinson Rule
On June 18, 2009, the 2nd District Court of Appeal affirmed two separate unpublished decisions that confirmed the Benson decision in that one cannot combine PD ratings for two injuries that simultaneously become P&S. The Wilkinson Rule therefore no longer exists, which combined the disabilities into one PD rating. Forzetting v. WCAB and Vilkitis v. WCAB. The applicant’s attorney in the Benson case, however, did file a Petition for Review with the California Supreme Court.
LeBoeuf
The California Supreme Court is also reviewing a 6th District Court of Appeal decision in the matter of Aguilar v. Hertz, where it determined that the employer was not responsible for any portion of a worker’s disability caused by pre-existing non-industrial factors, including inability to speak English, and read or write native Spanish, causing 100% disability.
Repeal Labor Code §139.5
In an en banc decision on June 11, 2009, the WCAB found that the repeal of the specific statute terminated any rights to vocational rehabilitation benefits or services that had not been ordered or awarded before January 1, 2009. Weiner v. Ralphs Co. (ADJ347040) – 6/11/09. Effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but jurisdiction to enforce or terminate vested rights continued under Labor Code §§5502(b)(3) and 5803.
Thursday, March 19th, 2009
Topics
Almaraz/Guzman – A Groundbreaking Decision
Almaraz/Guzman – A Groundbreaking Decision
On February 3, 2009, in an en banc 55-page decision, the Appeals Board held that the American Medical Association (AMA) Guides’ portion of the 2005 Permanent Disability Rating Schedule is rebuttable. The case further held that a party may rebut the AMA Guides portion of the 2005 Schedule by showing that “an impairment rating based on the AMA Guides would result in a PD Award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.” Once a party has rebutted this portion of the 2005 Schedule, the WCAB may base the impairment determination upon “medical opinions that are not based or are only partially based on the AMA Guides.”
Almaraz/Guzman further held that the AMA Guides were only a first step in determining impairment, where outside factors should also be considered when making an impairment determination. The Appeals Board indicated that this did not mean that the ratings should now be based on the pre-2005 Rating Schedule.
Unlike almost all prior Appeals Board decisions, the Almaraz/Guzman decision took into consideration many decisions from outside of California discussing the appropriateness of the AMA Guides.
As such, the Appeals Board acknowledged that the AMA Guides were not all encompassing. It focused on the fact that physicians should be called upon to use their judgment and experience when reaching an impairment rating, as opposed to mechanically applying objective measurements and assigning a whole person impairment rating. This decision would also allow the Appeals Board to focus more on the individual person with their own individual factors, rather than a mechanical, and at times, inaccurate formula.
The Almaraz/Guzman decision does not change current law, but is considered an extension of the interpretation. As such, an applicant would have to file a Petition to Reopen and will still have to overcome that “new and further” disability exists before the new rating would be applied to his/her case.
Some applicants’ attorneys hold the position that the AMA Guides would be “the floor” value for the applicant’s disability, but the decision did keep the door open for other rebuttable factors such as evidence of the applicant’s abilities beyond the level indicated by the AMA Guides.
The focus will, therefore, shift whether the medical reports would be considered “substantial evidence” of an applicant’s true disability. Physicians will need to fully explain their deviation from the AMA Guides and set forth how and why they arrived at their determination. Significant detail will need to be incorporated. The medical report should still include an accurate history of the applicant’s injuries with all relevant facts, and should include all clinical evidence for the basis of the opinion. Physicians should not use the comparison with the pre-2005 Schedule, and they should refrain from guesswork.
The Almaraz/Guzman decision will, therefore, create challenges not only for the judges, but also for all parties involved in arriving at fair and accurate PD assessments.
Stay tuned for more information in the coming weeks regarding potential appeals.
Saturday, December 20th, 2008
Topics
TD Rate Change
2009 Mileage Rate Change
EAMS Regulations Requiring Special Forms
Full PD Advance Credit
Employer’s Failure to Post Notices Precludes Statute of Limitations Defense
OK to Revise Prior Decision
WCAB Still Has Authority Over VR
Appellate Court and Rating Schedule Rebuttal Tactic
TD Rate Change
Effective 1/1/09, the TD rates changed as follows:
Maximum $958.01/week
Minimum $143.70/week
2009 Mileage Rate Change
Effective 1/1/09, the mileage rate has been reduced to 55 cents/mile. Between 7/1/09-12/31/08, the mileage rate was 58.5 cents/mile.
EAMS Regulations Requiring Special Forms
Effective 11/17/08, the WCAB requires the use of the optical character recognition forms. An extension was granted to 12/12/08. Unrepresented injured workers will be allowed a three-month transition until February 17, 2009, from legacy forms to OCR forms.
Full PD Advance Credit
In Huhtamaki Americas v. WCAB (11/4/08 unpublished decision) the court held that the clear and unambiguous terms of the compromise and release entitled the Employer to credit against the lump-sum settlement for further PD advances. The court determined that granting a full sum of credit for PD advances “is consistent with the normal practice in workers’ compensation cases to give an employer full credit for PD advances.”
Employer’s Failure to Post Notices Precludes Statute of Limitations Defense
A workers’ compensation judge did not apply the one-year statute of limitations to a claim where the employer failed to post notices of her workers’ compensation rights or notify the worker of her rights. In Pugh v. WCAB (11/13/08 unpublished decision) the court opined that this case demonstrates the need for posted notices explaining employees’ rights. They also said that employers could prove that an employee knew of their workers’ compensation rights by sending individual workers written correspondence, and keeping copies of that mailed correspondence in their records.
OK to Revise Prior Decision
In Dykes v. WCAB (11/04/08 unpublished decision) the court determined that it possesses “continuing jurisdiction” and may reopen and revise a prior decision when a petition to reopen is filed within five years from the date of injury, but it may only do so if there is a “satisfactory showing of good cause.” Dykes received a 20.5% PD award worth $11,680 in 1996 for a back injury. He was granted a 73% PD award of $104,305 in a subsequent 2002 back injury with the $11,680 from the 1996 award subtracted. The employer appealed, arguing Dykes was entitled to the difference between a 73% and 20.5% disability for the 2002 injury. The WCAB ultimately granted the employer’s petition for reconsideration and remanded the case with instructions to recalculate the award consistent with Brodie – thus reducing Dykes’ award to $48,663.
WCAB Still Has Authority Over VR
TNeil Sullivan, the deputy commissioner of the WCAB, e-mailed WorkCompCentral stating the WCAB is vested with judicial powers over workers’ compensation claims, and that it has delegated that power to workers’ compensation judges. He wrote that workers’ compensation judges, not the DWC, have the jurisdiction to determine whether or not injured workers might be entitled to new or additional vocational rehabilitation services and benefits on or after January 1, 2009. Further, they have the jurisdiction to determine whether the WCAB can hear and determine vocational rehabilitation appeals filed on or after January 1, 2009.
Appellate Court and Rating Schedule Rebuttal Tactics
The 6th District Court of Appeals ruled that an employer was not responsible for any portion of a worker’s permanent disability that is caused by pre-existing non-industrial factors. The appellate court reversed a ruling that an applicant was 100% disabled because he speaks no English and cannot read or write even in his native language. He would have been rated “at about 60% under the PD rating schedule. Defense attorneys have opined that this ruling narrows the range of circumstance in which applicants’ attorneys can use the testimony of vocational rehabilitation experts to overcome the rating schedule. Hertz. Corp. V. WCAB, 12/16/08.
Monday, October 27th, 2008
Topics
California Applicants Must Pay for Going Outside of the MPN
Employer Not Required to Create Part-time Position
Petition to Challenge 24-Visit Cap on Chiropractic Treatment Denied
En Banc Decision Clarifies Role of Penalty Statute
Attorney Files Petition for Write of Review in Boughner Case
Supreme Court Holds Employers to LC 4610 with Sandhagen Decision
En Banc Decision Clarifies Role of Penalty Statute
En Banc Decision Clarifies Role of Penalty Statute
California Applicants Must Pay for Going Outside of the MPN
On October 14, 2008, the Workers' Compensation Appeals Board ruled that California employers are not liable for the cost of medical treatment for applicants who go outside a properly noticed medical provider network and self-procure treatment for on the job injuries. According to some attorneys, the trend to self-procure medical treatment outside of the MPN as a strategy to obtain greater permanent disability awards has been steadily increasing, especially in the Los Angeles area. The panel decision in Lane v. Big Lots Stores, et al., No. ADJ2708349, 10/13/08, does not provide citable authority; however, it does provide insurers and employers ammunition to deny liens for self-procured care.
Employer Not Required to Create Part-time Position
In Butler v. DirecTV, the 2nd District Court of Appeal held that a former DirecTV employee did not present a triable issue of fact regarding whether the company had failed to accommodate him after he suffered a work-related injury. DirecTV gave the applicant disability leave for longer than was allowed by DirecTV policy and after an "adequate inquiry," the court found that the labor costs of creating a part-time position would result in an "...undue hardship." The court held that they, "...will not interfere with the core management decision of how to structure a work force."
Petition to Challenge 24-Visit Cap on Chiropractic Treatment Denied
The California Supreme Court denied the petition for review in Facundo-Guerrero v. WCAB, No. A119814, 9/12908. By denying the petition the court reinforced the 1st District Court of Appeal's holding that there is "nothing unconstitutional" about Labor Code 4604.5(d) and that the "Legislature has legal authority to enact a law limiting petitioner's right to receive chiropractic treatment." The legislature established the Labor Code section with the approval of Senate Bill 228 in 2003.
En Banc Decision Clarifies Role of Penalty Statute
On September 11, 2008, an en banc decision provided a laundry list of specific factors that judges must consider when deciding whether Labor Code 5814(a) penalties are owed because of a late claims payment. In Ramirez v. Drive Financial Services, No. ADJ4579659, 9/9/09, the commissioners concluded that Section 5814 penalties fall within the discretionary realm of a workers' compensation judge. And to help clarify the Penalty Statute the court derived nine factors addressing the issue of whether a delayed payment was reasonable.
Attorney Files Petition for Write of Review in Boughner Case
On July 16, 2008, applicants' attorney, Jeffrey Greenberg, filed a petition for writ of review in the case of Boughner v. Workers' Compensation Appeals Board, No. A122055. The case first garnered nationwide attention after WCAB Judge Jacqueline Duncan ruled that the diminished future earning capacity formula under the 2005 permanent disability rating schedule was inconsistent with statutes requiring the DFEC to be based on empirical data. On June 2, 2008, the WCAB in an en banc decision stated the applicant had not satisfied his burden of proof to invalidate the 2005 PD Rating Schedule.
Supreme Court Holds Employers to LC 4610 with Sandhagen Decision
In Sandhagen v.WCAB, No. S149257, 7/3/08, the high court reversed and remanded the 3rd District Court of Appeal's previous ruling, and did not allow the State Compensation Insurance Fund to "opt out" of the utilization-review process described in Labor Code 4610 by instead using the dispute resolution procedures in Labor Code 4062. In the secondary part of its opinion, the justices explained that the legislature intended for Section 4610 to govern employers' reviews of treatment requests.
Monday, January 7, 2008
Topics
WCAB To Go Paperless
Increase in TD Rates Effective January 1, 2008
Increase in Mileage Reimbursement
Extension of Temporary Disability Payment Cap
Post-surgical Treatment Exemption
Wilkinson Rule No Longer Applicable
Apportionment Ruling in Anti-Discrimination Case [non-published]
WCAB To Go Paperless
2008 will be the year that the WCAB will go paperless. More information will follow as soon as it is available.
Increase in TD Rates Effective January 1, 2008
Effective January 1, 2008, the TD rate has been increased by 3.9% to $916.33 per week. The corresponding average weekly wages will be $1,374.50. The minimum TD rate has been increased to $137.45 per week, with a corresponding minimum average weekly wages of $206.18.
Increase in Mileage Reimbursement
Effective January 1, 2008, the mileage reimbursement for medical- and legal-related travel for the injured workers has been increased to 50.5 cents per mile.
Extension of Temporary Disability Payment Cap
Effective January 1, 2008, Labor Code §4656 has been amended to extend the temporary disability payment cap for most injuries from 104 compensable weeks within two years of the date of the first TD payment to 104 compensable weeks within 5 years of the date of injury. AB 338.
Post-surgical Treatment Exemption
Labor Code §4604.5 has been amended to exempt post-surgical patients from 24-visit caps on physical therapy and chiropractic care if the physical medicine and rehabilitation services comply with post-surgical treatment guidelines established by the Administrative Director. AB 1073. The guidelines are expected to be adopted in early 2008.
Wilkinson Rule No Longer Applicable
In an en banc decision, the Appeals Board has overturned “the Wilkinson Doctrine” and has ruled that “…all potential causes of disability – whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition – must be taken into consideration.” An injured worker will no longer be entitled to a combined award of permanent disability when two separate injuries to the same body part become permanent and stationary at the same time. Diane Benson v. Permanente Medical Group, OAK 0297895, OAK 0326228, 12/13/07. The Decision will result in some lower awards for injured workers and is therefore likely to be appealed.
Apportionment Ruling in Anti-Discrimination Case [non-published]
The 3rd District Court of Appeal ruled that “any apportionment to age, per se, runs afoul of state anti-discriminatory law.” The court found that the Agreed Medical Evaluator’s findings regarding apportionment for osteoporosis due to the applicant’s age needed further development to make sure that there was no age discrimination. Osteoporosis, however, could still be a basis for apportionment under the right conditions. Viara v. WCAB, C054948, 12/3/07.
Monday, November 26, 2007
Topics
TD Rates as of January 1, 2008
Medical Treatment Visits
Bills Extending TD and 24-visit cap
Rebutting Permanent Disability Rating Schedule
Increase in TD Rates Effective January 1, 2008
Effective January 1, 2008, the TD rate will be increased by 3.9% to $916.33 per week. The corresponding average weekly wages will be $1,374.50. The minimum TD rate will be increased to $137.45 per week, with a corresponding minimum average weekly wages of $206.18.
The DWC is further working on a proposal to increase the PD Rating Schedule by February 1, 2008. The changes would be to the multiplier for the Future Earnings Capacity (FEC), as well as a change to the age modifier.
Interpreting Services During Medical Treatment Visits.
The WCAB upheld a lien filed for interpreting services provided during follow-up treatment visits. The ruling, however, was not en banc, and will therefore not be a binding precedent for all board panels and workers’ comp judges. The lien claimant, however, is currently pursuing the Board to label the ruling as a “significant panel decision.” Gerardo Perez v. A’s Match Dyeing, (10/16/07) LBO 0357008. The decision was in line with Garcia v. SCIF (2001) 29CWCR 310.
Bills Approved to Extend TD and 24-visit cap.
AB 338 was approved by Governor Schwarzenegger which would continue to limit TD benefits to 104 weeks in total, but the benefits could be used in broken periods within 5 years of the date of injury.
AB 1073 was also approved and would lift the 24-visit cap for post-surgical patients. The DWC would still have the authority to impose limits through the medical treatment guidelines. The DWC, in the meantime, has been working on the new guidelines. The proposed post-surgical treatment guidelines would also address the presumption of correctness.
Vocational Experts Can Rebut Permanent Disability Rating Schedule.
In an en banc decision, the WCAB ruled that Vocational Experts can present non-medical evidence in an attempt to rebut permanent disability ratings and the insurance carriers can be required to pay for the services. The WCAB set standards for allowing the costs - similar to medical-legal costs - including whether the costs were reasonable and necessary. The determination would be on a case-by-case basis. The case was remanded back to the trial judge to determine whether the standards had been met. Joey Costa v. Hardy Diagnostic / SCIF, GRO 00318810.
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