AMA Guides 5th Ed.
AMA Guides 5th Ed.

Clearly, Almaraz/Guzman has been a boon to the U.S. Postal Service.  I’ve been receiving Almaraz/Guzman letters from Applicant attorneys on my files ever since the en banc decision came out.  These letters typically fall into one of three categories:

  1. Increased demands for settlement
  2. Demands for additional discovery per Almaraz/Guzman
  3. Letters to the PQME/AME requesting their opinions on impairment outside the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition

I’ve also heard of some doctors completely abandoning the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition, in favor of just analogizing impairment.  This is not what was intended by the en banc panel in WCAB in Almaraz/Guzman.

Here’s what Almaraz/Guzman means for workers’ compensation practitioners:

So, remember:

  1. Whether you agree with the AMA Guides or the 2005 PDRS they’re still the law of the land and must be addressed.
  2. Whether you agree with Almaraz/Guzman, it’s still good law and must be addressed.
  3. Almaraz/Guzman does not absolve a doctor from the responsibility to generate a medical report which addresses the AMA Guides and constitutes substantial medical evidence.

Indy 500
Indy 500

Wow!  500 registered users!

Last month I mentioned that this website had a record number of new visitors.  I honestly thought that was an anomalous one day spike in traffic.  Instead we’ve had a sustained increase in new visitors and people signing up to use the workers’ compensation calculators for free.

Since February 13, 2009 ((When the 400th user registered.)) I’ve enjoyed posting about:

Ever since I relaunched this website I’ve had this idea in the back of my mind that getting to 500 users would be a big deal.  There are literally hundreds of workers’ compensation professionals who rely on this website and its calculators to make their lives a little easier.  This certainly feels like a big deal to me.

California Court of Appeals, Sixth Appellate District
California Court of Appeals, Sixth Appellate District

Just when you thought things couldn’t get any crazier in workers’ compensation than Ogilvie, Almaraz/Guzman, Benson, and XyzzxSJO2.  Yesterday I found out that on April 7, 2009 the case of Smith v. WCAB (California Youth Authority) is on calendar for oral argument.  As with Almaraz/Guzman, Smith v. WCAB dealt with similar legal issues across two particular workers’ compensation cases.  In case you missed it, here’s the court of appeal decision:

Smith involved an informal denial of medical treatment without a formal petition to terminate medical care under L.C. 4607, after an award of permanent disability. Eight years after Smith’s  award, SCIF refused to authorize epidural injections.  Smith’s attorney sought utilization review, Smith was reexamined by the AME who said the injections were necessary to relieve from the effects of the industrial injury.  Although SCIF then authorized the injections without the need for a hearing, Smith’s attorney sought fees under L.C. 4607.

The WCJ denied Smith’s attorney’s petition for fess since there was no formal petition to terminated medical care.  The WCAB denied reconsideration on the grounds that SCIF’s was not denying all medical treatment.

Amar is substantially similar to Smith, except that in Amar the workers’ compensation judge took the extra step of opining that SCIF’s denial of medical treatment was made in good faith, not unreasonable, and not improper.

However, the 2nd Appellate Court reversed the WCAB in Smith and Amar, stating in relevant part:

“We see no difference when a carrier informally denies some of the treatment that is a necessary part of medical care previously awarded. This is tantamount to a petition to deny medical care even though the carrier continues to provide treatment for some of applicant’s medical care.”

“Insurance carriers who fail to provide previously awarded medical care may not avoid attorney fees to successful applicants’ attorneys through the expedient of an informal denial, even when they do so in good faith.”

I would love to watch the oral argument on this case – but Los Angeles is a bit of a hike for me.  ((I last watched oral argument on the Mt. Diablo Unified School District v. WCAB (Rollick) case back on 8/5/2008.  It was particularly interesting for me since I was familiar with the applicant attorney, defense attorney, and facts of that case.  If nothing else, its always fun to watch judges get snarky.))  I am very very interested to see how this case shakes out.

XYZZXSJO2 - The motion picture!
XYZZXSJO2 - The sequel!

Last week I posted about a recent case from the San Jose WCAB that indicated a life pension SAWW ((SAWW means State Average Weekly Wage)) increase is applied on the first January 1 after the date of injury.  You can find a download of the XYZZXSJO2 case here.

I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access.  ((If you have already helped me out as a beta tester, you already have access to this calculator.))

Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator.  The actuarial math involved in performing that calculation is … intense.

As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase.  Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used.  I was pretty disappointed to find this out.

No matter!  Help beta test the new calculator by dropping me a line.  After you’ve given it a whirl, let me know what you think.

Imaginary Security
Imaginary Security

I recently posted about a fun experience with the metal detectors and security staff at the Oakland WCAB. ((Original photo courtesy of Daquella manera.))

At the end of January I was fortunate enough to witness more security shenanigans.

A man in line behind me took off all metal from his person and placed it in the provided gray plastic bin.  Here’s a summary of the exchange between this gentleman and the security guard:

  • Security:  Sir, you’re going to have to take off your belt.
  • Man:  My belt buckle is metal.  I took it off, see?  There’s no metal in my belt.
  • Security:  That doesn’t matter, sir.  Please take off your belt.
  • Man:  But, there’s no metal in it.
  • Security:  Sir, you’re going to need to put your belt through the metal detector.
  • The man finally took off his belt…

I have several problems with this ((imaginary))  “security procedure.”

  1. It is irrational and absurd.
  2. This system encourages security guards to be lazy and unobservant, encouraging the hiring of unsophisticated or untrained security guards.
  3. This system places too much importance on the value of x-ray machines.

Let’s take this point by point, shall we?

First, when challenged to provide any rationale for their demands, the security staff resorts to argumentum ad verecundiam.  ((Latin argument for “appeal to authority” aka “I have a badge so I must be right” aka “‘Cause I said so, that’s why.”))  There’s no reason why a non-metal belt buckle or, heaven forbid a piece of paper, needs to be fed into the x-ray machine.  They’re not security risks.

Second, the current system allows the security guards to insist all detachable belongings be fed into the x-ray machine.  ((Don’t forget to put your right to privacy in that bin.  After all, you don’t have anything to hide from Big Brother, do you?)) ((For a while they actually required the removal of shoes too.  Taking your shoes off at the airport is bad enough.  But at the Oakland state building???))  The current system essentially removes the incentive for hiring trained, competent, or intelligent staff.  And, really, why should they?  A mannequin with a sign around its neck could instruct everyone to remove all belongings.

Finally, the current system allows all the security guards at the Oakland state building to place too much importance on the x-ray machines.  Once you’ve placed your belongings ((And dignity!  Don’t forget your dignity!  Don’t worry, after a couple of times through this system it will be small enough to fit comfortably between your cell phone and belt buckle.)) in the plastic bin, you aren’t given a second glance.  What happens if someone decides to conceal a dangerous non-metalic object on their person?  These security guards believe that paper should be x-rayed!  I’m supposed to trust in their powers of keen observation?

Can you tell I’m frustrated with the security situation at the Oakland WCAB?