Friday, June 17, 2011

Denial in Almaraz Means Medical Evidence is Key

Readers I'm sure are getting tired of my California-centric posts of late, but the Golden State continues to produce controversy in the workers' compensation industry feeding me much fodder for my musings.

And so it was again late yesterday afternoon as news spread throughout the California community that the 5th District Court of Appeals (DCA) denied State Fund's Petition for Review in the Almaraz case.

For those of you unfamiliar with this controversy, here's a quick, simplified overview:

Almaraz is part of the consolidated cases of Almaraz/Guzman in which the CA Workers' Compensation Appeals Board (WCAB) issued a couple of binding precedents, the latest of which is know generically in the community as Almaraz/Guzman II that held essentially that while PD ratings must be based on the AMA Guides 5th ed., physicians have the latitude to use any impairment found within the Guides so long as an impairment that is not directly applicable to the injury in question is adequately explained.

The defendant in the Guzman part of the case, Milpitas School District, appealed, and since they were in a different jurisdiction the 6th DCA took up the case and eventually ruled against the defendant upholding the WCAB's interpretation of the law. The CA Supreme Court refused to grant review.

The State Fund was the defendant in the Almaraz part of the case and since they are in a different venue had to go to a different appellate court, the 5th DCA.

The industry had been waiting for a decision from the 5th DCA for quite some time and I'm sure many were surprised that the court refused to grant review.

Sentiment is that the State Fund will seek review before the Supreme Court and of course no one really know whether the court will take a look, but my guess is that the Supreme Court has more important issues on its docket and since there is now no conflict in law the 6th DCA's opinion will stand as the basis for permanent disability ratings in California.

There are still ancillary issues surrounding ratings that were not addressed in the Almaraz/Guzman cases, such as what do doctors do if there is absolutely nothing in the Guides to describe an impairment whatsoever - derive impairments from other jurisdictions, or just make them up?

Regardless, in all likelihood the state of the law on this issue is resolved. This can be good for the industry - while the carrier/employer block may not like the result, at least the issue is settled which gives the industry some semblance of reliability and predictability. 

It may not be as definitive as having an absolute limitation on what impairment can be used for any given injury, but at least we know that physicians have a choice in how they describe impairment and this can be of benefit to both sides of a controversy. 

It all comes down to substantial evidence and as with so many things in work comp litigation, it is the quality of the medical reporting that is going to rule the day. You want a favorable result? Make sure your medical-legal reporting is impeccable.

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