Almaraz and Guzman case finds AMA Guides can be Rebutted.

Mario Almaraz (Recent en banc decision February 3, 2009)
v.
Environmental Recovery Services (aka Enviroserve);State Compensation Insurance Fund

-and-

Joyce Guzman
v.
Milpitas Unified School District, Permissibly Self-Insured;Keenan & Associates

ADJ1078163 (BAK 0145426) - Marion AlmarazADJ3341185 (SJO 0254688) - Joyce Guzman
74 Cal. Comp. Cases

The Appeals Board held in substance that: (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.
This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule … shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the AMA Guides portion of the schedule can be rebutted.

see full decision
http://www.dir.ca.gov/wcab/EnBancdecisions2009/WCAB_EnBanc_AlmarazMGuzmanJ.pdf

Tapia Case- Finds Lien Claimants must proof Charges are Reasonable.

Maria Tapia (Recent en banc decision dated September 17, 2008)
v.
Skill Master Staffing; and Liberty Mutual Insurance Company, SB Surgery Center

ADJ 4564224 (LBO 0322121)
73 Cal. Comp. Cases 1338

The Appeals Board held that consistent with its en banc decision in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant’s billing, by itself, does not establish that the claimed fee is “reasonable”; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided.

See full decision
http://www.dir.ca.gov/wcab/EnBancdecisions2008/2008-EB-4.pdf

Boughner en banc Solidifies New 2005 PDRS Are Presumptively Valid

Scott Boughner (Recent en banc decision June 2, 2008)
v.
CompUSA, Inc.: and Zurich North America
(WCAB No. SFO 0491230)


The Board held that the applicant did not carry his burden of demonstrating that the adoption of the 2005 Permanent Disability Rating Schedule (PDRS) by the Administrative Director of the Division of Workers’ Compensation was arbitrary or capricious, or inconsistent with Labor Code section 4660(b)(2), and therefore that he failed to rebut the presumptive validity of the 2005 PDRS.

See full Decision: http://www.dir.ca.gov/wcab/EnBancdecisions2008/2008-EB-1.pdf

Wilkinson No Longer Applies, Doctor Must Apportion to Cause

Dianne Benson, (December 13, 2007 en banc decision)
v.
The Permanente Medical Group,Permissibly Self-Insured; Athens Administrators (Adjusting Agent),
(WCAB No. OAK 0297895 & OAK 0326228)


The Board held that the rule in Wilkinson, (i.e., basically allowing a combined award of permanent disability in successive injury cases,) is not consistent with the new requirement that apportionment be based on causation and that, therefore, Wilkinson is no longer generally applicable. The Board must determine and apportion to the cause of disability for each industrial injury. The Board noted that consideration must be given to 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. It was observed, however, that there may be limited circumstances, not present in these cases, where the evaluating physicians cannot parcel out, with reasonable medical probability, the approximate percentages to which each successive injury causally contributed to the employee's overall permanent disability. Under those limited circumstances, a combined award of permanent disability may still be justified.
The holding as applied in these cases resulted in separate awards of permanent disability. This opinion involved an interpretation of Labor Code §§4663 and 4664(a) as enacted under SB 899 and the impact on prior legal principles.



View PDF version of case

http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-9.pdf

Defendant Not Responsible For FEC Cost If Applicant Does Not Prove PDR Is Invalid

**REMINDER**

Joey M. Costa, (December 7, 2006 en banc decision)
v.
Hardy Diagnostic and State Compensation Insurance Fund
(WCAB No. GRO 0031810 )


The Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code section 4660 was invalid, and 2) that, as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

In this case the FEC was not admitted as evidence!

The applicant has to prove the PDR (permanent disabilty rating) is invalid, which they did not in this case. If they do prove it invalid then the cost of discovery and evidence is considered Med-legal cost.

In this case, the Exhibit 1 was the DFEC report and Exhibit 4 was the DFEC expert testimony. Both were not admitted as evidence, which means in this case they were not deemed med-legal costs. The judge ordered; neither the defense nor the applicant are responsible for the cost of the FEC evaluation and report. The cost would be adjusted paid or litigated by form of lien up to the extent of lien trial.

This is why it is a gamble for VRC specialists to do the DFEC evaluations. They might not get paid if the applicant cannot prove the PDR was invalid.

See complete decision
pdf: http://www.dir.ca.gov/WCAB/2006-EB-6.pdf
or
2006-EB-6 version

Newly Represented Applicant Can Request New Panel QME

Nelly Romero (2007 significant panel decision)
vs.
Costco Wholesale, permissibly self-insured
Case Nos. OAK 0328271

If an in pro per applicant does not like the panel QME list and they have not had the evaluation yet, they can become represented and request a new panel QME.

The Board held that for purposes of Labor Code §§4062.1(e) and 4062.2(e), an employee has "received" a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination. In this case, because the applicant had not attended and participated in (i.e., not "received") an examination by a panel QME scheduled while the applicant was not represented by an attorney, the applicant was entitled to request a new QME panel when the applicant became represented by an attorney. The workers' compensation judge's order for a new QME panel was therefore affirmed.

In other words, if the applicant does not like the panel QME choice they can become represented and go to an AME or get a new QME panel list.

See Decision:

http://www.dir.ca.gov/wcab/SignificantPanelDecisions2007/2007-sp-1.pdf

TTD Commencement Date Determined to be the Date TTD is First Paid, Not the Date TTD is First Owed.

Valeri Hawkins, (en banc decision, June 13, 2007)
v.
Amberwood Products; and State Compensation Insurance fund
(WCAB No. SAL 0107814)


The Board held that “the date of commencement of temporary disability payment” as used in section 4656(c)(1) means the date for which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed.

In this case, applicant was injured on July 16, 2004. Defendant’s first payment of temporary disability indemnity was made on May 3, 2005, which covered the period of TD from July 17, 2004 through May 3, 2005 and defendant then made periodic temporary disability indemnity payments through July 14, 2006. The WCJ’s decision concluded that the “period of two years from the date of commencement of temporary disability payment” as provided in section 4656(c)(1) began on May 3, 2005, the date on which temporary disability indemnity was first paid, and not from July 17, 2004, the date for which temporary disability indemnity was first owed. The WCJ’s decision was accordingly, affirmed.

This holding involved an interpretation of an addition to Labor Code §4656 under SB 899.



See full decision:

http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-6.pdf