inside

• Editor's 2 Cents: Almaraz & Ogilvie
• Legal Update:  Two New Tools For the Applicants
• Joan Lloyd: When the Economy Tanks It's Time to Shine
• Fraud Watch: Stalking: Round Two

• Newsflash: Some Idled Employees May See Workers' Comp as Income Spinner

• Job Alert: Investigator...
• Events Calendar: What's Happening in March
• Poll: Should AIG Get Another Bailout?
• Poll Results: Should the Administration of Worker' Compensation Be the Same in Every State?
• The Last Laugh

Adjusting World welcomes emails/letters to the editor and comments on any of our articles. Emails/letters should not exceed 250 words in length and can be sent to the individual email address listed on the article or to: comments@adjustingworld.com.

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Almaraz & Ogilvie

William Nathans
Editor

bill@adjustingworld.com  

 

Almaraz and Ogilvie were decided by an enbanc decision that is, in my opinion, inconsistent with, and ignores the legislative intent of SB-899 to remove subjectivity from the system because of the cost driving factors. The legislature decided to move to evidence based medicine as the mandated basis for treatment in workers compensation cases.

The purpose of moving to evidence based medicine was to provide for objective standards and a bases for providing medical treatment by the logical extension of disability. There is now the requirement of objective findings to support a finding of disability. Disability based on subjective complaints with objective findings is no longer valid.

The Board failed to take this into account when reaching their decision.  All of the challenges to the conversion to evidence based guidelines for treatment have been upheld i.e. the 24 visit cap on chiropractic care.

So we have a situation where the evidence based medicine findings support the AMA WPI, but the WCJ’s are now free to ignore them and return factoring to the pre-2005 work restrictions that more often than not are based solely on subjective complaints.

The decision will have the effect of unleashing a tsunami against businesses in California at a time when we are facing an uncertain economic reality.

  

Comments, questions, e-mail me at bill@adjustingworld.com

Two New Tools For the Applicants

Stephen L. Kline, Esq.
steve@adjustingworld.com

The WCAB ended the winter doldrums with two en banc decisions within the last thirty (30) days.   Ever since the issuance of the two Costa decisions indicating that the current permanent disability schedule could be rebutted as it was only prima facie evidence of the applicant’s permanent disability, the WCAB allowed all parties to their own devices to determined how to “rebut the schedule”.   The resulting multitude of methods and schemes left Judges and parties alike to create instability with the schedule where the Legislature had called for consistency and uniformity with the adoption of the AMA Guides.  Relief from that instability may not be the outcome of these decisions.

In the first case, Ogilve v San Francisco, the Board set out the methodology to challenge the DFEC component of the rating.  This aspect of the schedule was added by the Legislature in the 2004 reforms to adjust for the fact that AMA Guidelines which were the basis for the newly revised schedule did not take into consideration work disability and was used to increase the amounts that applicant’s were to receive, if there was a strict interpretation of the AMA Guides.

In their Ogilve summary holding the WCAB stated,  “(1) the DFEC portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings, and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent with Labor Code section 4660 – including section 4660(b)(2) and the RAND data to which section 4660(b)(2).”

 

The focus turns to the fourth section.   This new tool available to applicants as stated by one of my colleagues may not be the most viable method of rebutting the schedule as it only deals with the DFEC component which will only adjust the ultimate rating by a few points.  The methodology to challenge the DFEC is complicated, tortuous and will not involve vocational rehabilitation experts.  However, be wary of adding costs to the case through the use of an economics expert which would increase the overall liability of the matter. Labor Code §5811.

 

The second opinion which is the consolidation of two cases, presents the more interesting and viable assault by the WCAB  and the applicant’s bar on the 2005 AMA Guideline based Permanent Disability Schedule.

 

The cases were Almarez v ERS and Guzman v Milpitas School District, (hereinafter referred to as Almarez / Guzman.  The WCAB first posed the question as to whether and how the AMA Guides may be rebutted.

 

They held “in summary that: (1) the 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.” 

I am sure we can all think of at least 4 to 5 Judges in this State who have already decided that any rating arising out of the AMA Guides is inequitable, disproportionate and not a fair and accurate measurement of an employee’s permanent disability.  However, defense attorneys should be armed with this caveat from the Board, “further, we expressly proclaim that our holding does not open the door to impairment

ratings directly or indirectly based upon any Schedule in effect prior to 2005, regardless of how “fair” such a rating might seem to a physician, litigant, or trier-of-fact.”

So what evidence needs to be presented by the applicant in order to meet their burden to rebut the AMA Guides?

The WCAB reiterated the fundamental standard, that “a party may rebut a scheduled impairment rating based on the AMA Guides by showing that this impairment rating would result in a permanent disability award that would be inequitable and not commensurate with the disability the employee has suffered.”   They continued, “ordinarily, this showing will be accomplished through the opinions of treating or evaluating physicians who, using methodology in addition to and/or independent of the AMA Guides, conclude that the injured employee’s impairment is greater than – or lesser than – the impairment rating called for by the Guides.”  This will be accomplished where  “a physician may invoke his or her judgment based upon his or her experience, training, and skill.”   How many supplemental reports or depositions does that add to the cost of litigation?

The WCAB added, “in evaluating impairment in a manner outside of or in addition to that prescribed by the AMA Guides, the physician may consider other generally accepted medical literature or criteria. Such additional or alternative literature could include, but would not necessarily be limited to, other AMA publications or the publications of other established medical organizations.”   Are we seeing the return of the chiropractor’s infamous Mercy Guidelines?

The WCAB also stated, that “in reaching an impairment opinion that is not based on a strict application of the AMA Guides, a physician may consider a wide variety of medical and non-medical information.”  How wide has the door been opened now?

Finally, if the Judge is convinced that the AMA Guide is rebutted through the evidence presented, how does the disability get rated?

The Judge can rely upon “a physician’s estimate of the percentage of the employee’s impairment may be accepted even though this estimate is not exact, provided that the physician’s opinion is adequately explained and is based on the factors set forth in the opinion – including the physician’s judgment, experience, training, and skill.”  The estimate then would replace the number from the AMA Guide and be used through the rest of the formula. 

The Board again repeated that work preclusions are not returning to the system.  However, a question remains, do we still have a Permanent Disability Schedule in California?   Certainly, zero percent cases are even now more limited than through the strict use of the AMA Guides.   There are reports that SCIF will challenge this decision with the filing of a Writ in the Court of Appeal.  However, until this ruling is either stayed or overturned, this is the law for all the Judges in California.  The next few months are going to be very interesting to see how this ruling affects the cases.  The economic savings of the Revised Schedule may have been decimated.

Thanks for your attention.

 

If you have any questions, please feel free to contact me at my new email address slkesq@me.com.

 

 

 Don't miss Steve's Legal Update on March 27th at the SBICA Luncheon.

See the upcoming events calendar for more information......

Have a question for Steve?

Don't hesitate to ask.  Email it to: steve@adjustingworld.com and get it answered right here.

 

Stalking: Round Two

David Dindak

Coast to Coast Data Search

david@2mypi.com

I wanted to continue my column on stalking and direct the conversation to who is most likely at risk.  The following has no direct correlation to Fraud, but after reading up on the topic, I thought with these troubling times it might be important to share this with you.

The U.S. Department of Justice and the Centers for Disease Control conducted the first national study on stalking in the late 90’s.  Prior to this study, there was a collection of small regional studies or cases on individual stalkers.  The national study, “Stalking in America: Findings From the National Violence Against Women Survey”  finally gave law makers, law enforcement and advocacy groups the data on the nature and scope of the problem in America and served as a model for anti-stalking codes throughout the nation. 

The report addressed the basic questions of stalking and even tried to exam the psychological and social consequences.  From the data that was gathered one insight became very clear from the report; stalking was more prevalent than anyone realized.  

Researchers estimated that about one million women and 400,000 men are stalked each year in the United States.  American Indians and Alaska native women are likely to report stalking more than any other groups when broken down by race or ethnicity.  Remember when Alaska was sooo under the microscope during the last election?

One of the facts that surfaced about the land of the midnight sun was about domestic violence and that almost 75% of Alaskans have experienced or know someone who has experienced domestic violence or sexual assault. 

Although stalking is viewed as a gender neutral crime, 78% of victims are women while 87% of stalkers are male.  52% of the victims are adult females between the ages of 18 to 29.  Most know their stalker because the stalker is usually a current or former intimate partner.  Many are stalked while in a current relationship with the stalker.  From this conclusion it is not surprising to learn that there is a strong correlation between stalking and violence in intimate relationships, especially when many report they have been physically assaulted by their stalker/partner.

Only ½ of the victims report their stalkers to the police.  Of the 25% of women and 10% of men who get a restraining order, 69% of the women and 81% of the men will violate the court order.  The average stalking case will last 1.8 years but there have been reports of stalking lasting as much as 5 years.

An estimated 12% of stalkers are brought to criminal trial.  It is easy to understand that with such a low prosecution rate, the victim will relocate to another area to escape the stalker.

Why is Someone Stalked 

There is a myth that stalkers are psychotic.  In reality, only a very small portion of stalkers are mentally ill.  The report indicated that stalking is about controlling the victim.  In order to maintain control over someone, a stalker must instill fear, uncertainty, and the threat of violence. As a result of this emotional and at times physical abuse the victim pays a psychological and social cost. 

Toll on a Victim 

30% of women and 20% of men were more likely to seek counseling as a result of being stalked.  They report a heightened sense of personal safety and will carry something with them to defend themselves.  Some have reported losing time from work for treatment, attending court cases or consulting with an attorney.

Results 

The study revealed the inadequacies of our system and anti-stalking laws.  They concluded, more research needs to be done beyond “celebrity stalking” to focus on stalking by intimates and partners.  Law enforcement and mental health professionals need to revise their training in this area to be more effective when working with victims.  Lastly, there should be programs in place to help victims to secure their identities when a victim must relocate to escape a stalker. In short, the report suggests we refine the existing process.

Next month we’ll end the series with stalking in the work place.    

Resouces:

“Stalking in America: Findings From the National Violence Against Women Survey”

Domestic Violence Facts: Alaska     

If you have any questions about Sub Rosa, AOE/COE, Fraud or Investigation, email me. at david@2mypi.com   

David Dindak is the CEO of Coast to Coast Data Search, an investigation firm that has successfully

serviced the insurance industry for the past 20 years.  He is a licensed PI and a continuing education

trainer in Investigation and Fraud. The above article is from the 2009 Investigation & Fraud Training Series. 

This training series is a free and is provided to companies onsite.

For additional information on Coast to Coast Data Search and/or how to bring the 2009 Investigation and

Fraud Training Classes to your company. Visit the website at: www.2mypi.com or call (800) 282-6278.

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