Seeking Balance

Wednesday, September 30, 2009 | 0

By Mullen & Filippi

In the spirit of the fall season, we look at recent developments in workers' compensation law with a view toward how the Workers' Compensation Appeals Board and the Department of Industrial Relations are doing in creating a balance between the interests of claimants and their employers.

<b>New Decisions in Almaraz/Guzman and Ogilvie</b>.  As many in the industry have already heard, the WCAB issued new en banc decisions in these cases on Sep. 3, 2009, modifying their opinions to take into account concerns raised by both applicants and defendants. The new decisions do seem to be an improvement, although we cannot yet say that the board has reached the correct balance of interests.

The most significant changes in the new decisions have to do with what evidence a party can use to rebut a permanent disability rating, and when is the appropriate time to pursue that evidence. As to what evidence can be used, perhaps the most criticized portion of the former Almaraz/Guzman decision was the holding that the whole person impairment number (WPI) could be rebutted by a medical opinion determining that the AMA Guides WPI was unfair, disproportionate or inequitable, leaving the doctor open to base his or her opinion on any medical standards he or she deemed fair. In the new decision, the board has rejected this standard, and instead holds that a medical opinion assessing permanent disability must be based on the AMA Guides, but can use any part of the AMA Guides which the doctor finds to be appropriate. While this at least puts a limit on the scope of evidence a doctor can use in calculating a WPI, it remains to be seen whether this will result in the consistent and reliable ratings we understood the statutes to require.

As to when a challenge to the permanent disability rating should be raised, one of the most controversial parts of the prior Ogilvie decision had to do with the holding that evaluating the diminished future earning capacity (FEC) adjustment should include an analysis of three years of post-injury earnings by the applicant. In response to an argument that this was not feasible where an applicant has been on temporary disability benefits during much of that period, the Board proposed that the claim could be resolved using the standard FEC and, if the applicant's actual earnings after completing the maximum 104 weeks of temporary disability indicated a different FEC would be appropriate, the applicant or defendant could petition to reopen the claim to adjust it. We find this an interesting suggestion.

Both new decisions contain language which seems to hold that efforts to rebut a rating should not be raised until after the initial medical opinion containing the AMA Guides rating evaluation has been received. Both decisions also hold that the party challenging the rating has the burden of proof to establish, through substantial evidence, that the AMA Guides rating is incorrect.

If you are interested in further discussion of these new decisions, or have questions about them, Mullen & Filippi is holding a series of lunch seminars in October to address these cases and other new developments. You can get further information about the seminars at our website, www.mulfil.com, or ask your favorite Mullen & Filippi attorney for an invitation. We hope to see you there.

<b>Helping Small Employers</b>.  The Department of Workers' Compensation (DWC) recently reported on a program it has instituted to help small employers pay costs associated with making workplace accommodations needed to bring injured workers back to work. We report on this here because it is a good example of something that strikes a positive balance between the needs of employers and injured workers.

As reported in a Sept. 1, 2009, DWC Newsline, the DWC has instituted a campaign to provide information to small businesses regarding how they can apply for reimbursement from the DWC when they make purchases to help employees continue working while they recover from an injury. According to the article, the DWC has reimbursed small employers for purchases of workplace equipment such as knee pads for a tile setter and a keyboard tray for an office administrator. The program is available to employers with 50 or fewer employees. Employers can get up to $1,500 to purchase equipment for temporarily disabled employees, or up to $2,500 to purchase equipment for permanently disabled employees. Providing such equipment helps people keep working after an injury, which benefits both the injured worker and the employer.

If you are a small employer, or know one who could benefit from this program, you may obtain information about it by going to www.bringemback.org,which will take you to the DWC's web page on the program.

<b>A Lesson In Overreaching</b>.  Finally, we wish to congratulate Ira Johns of Mullen & Filippi's Van Nuys office on a job well done in defeating a lien claim by a home health care agency which, Ira came to learn, was seeking a lot more than it could reasonably expect to receive.

The home health care agency claimed a lien for services worth, by its calculation, more than $400,000 including penalties and interest. The AME in the case had reported that the services were unnecessary and excessive and the charges were unreasonable. Based on the treating doctor's deposition, there was also some doubt whether he had ever actually submitted prescriptions or requests for all of the services reportedly provided. The lien claimant rebuffed settlement offers by the defendant, which proved to be unwise. Discovery revealed that the lien claimant did not have standing to go to trial on its claim. Following submission of legal briefs, the judge ultimately dismissed the claim, awarding zero to the lien claimant, which shows what happens when you try to tip the balance too far in your direction.

If you have questions about this case, or about dealing with lien claimants in general, Ira would be happy to talk to you.

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Mullen & Filippi is a workers' compensation defense law firm with offices throughout California. The Mullen & Filippi Bulletin is reprinted with the permission of the law firm from its website, www.mulfil.com.
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