Robert G. Rassp, Esq., the author of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, announces the new 2010 Edition of his book, which is now on sale and ready for shipment in mid-January.
We’ve reprinted the Foreword to his new book below. Note: We have now received official confirmation that the
California Division of Workers’ Compensation will not meet the statutory deadline to issue a new Permanent Disability Rating Schedule on January 1, 2010. To read Mr. Rassp's prediction for 2010 on a rating schedule, click here.
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April 19, 2009 marked the fifth anniversary of the enactment of SB 899. July 20, 2009 marked the fortieth anniversary of our landing on the moon. We are sure that if you are old enough, you remember where you were during the moon landing. We doubt you remember where you were when SB 899 was enacted. Nevertheless, the dire predictions of the negative impact SB 899 would have on our law practices never materialized. We predicted in the 2006 edition of this guidebook that attorneys would survive the reforms and many applicant and defense attorneys would prosper from them. We have survived the reforms of 2004 and we now enter a new phase of adjusting to SB 899—whether and how the 2005 permanent disability rating schedule can be rebutted.
The Almaraz-Guzman and Ogilvie cases have taken the workers’ compensation community by storm with the equation becoming somewhat balanced by the ability to rebut a rating under the 2005 PDRS with the demise of the Wilkinson doctrine and the emergence of the new “Benson” doctrine. The Workers’ Compensation Appeals Board in the en banc decisions took broad steps in developing the concepts in Almaraz-Guzman and Ogilvie. In fact, the commissioners spent six months deciding Almaraz-Guzman I and Ogilvie I, and the WCAB then spent an additional six months deliberating what became their revised decisions after reconsideration in Almaraz-Guzman II and Ogilvie II. Regardless of where you stand on these cases, we are in exciting and dynamic times. Final adjudication of the issues raised in these en banc decisions may take years, just like it did in Brodie/Welcher, which settled that we use “Formula A” previously adopted in Fuentes in subtracting prior awards in successive injury cases that involve the same parts of body injured.
This brings up a point we have repeatedly raised. This guidebook is a living document and we want the contents to be current and relevant to your workers’ compensation law and medical practices. In preparing for the 2009 edition of this guidebook, we thought the Administrative Director would adopt a new “2009 PDRS” as mandated by Labor Code Section 4660(c), so we included a copy of the proposed 2009 PDRS in that edition of The Lawyer’s Guide. We know that the 2009 PDRS was never adopted by the Administrative Director, probably for political reasons. But perhaps publishing it was useful anyway since the DFEC adjustments proposed in the 2009 PDRS were based on more recent empirical data with impairment ratings from the AMA Guides 5th Edition and the ratings in the 2005 PDRS were based on ratings from the 1988 PDRS. Publishing the proposed 2009 PDRS helped stimulate the debate about how the 2005 PDRS could be used or rebutted.
Now we have the Almaraz-Guzman and Ogilvie cases. We are including the most current account of the en banc decisions with the understanding that these decisions could be altered, modified, reversed or overruled after our manuscript submission deadline of October 12, 2009. The reality is that, as of that date, these decisions are binding on all WCAB panels and judges and the probability is that they will continue to be binding.
In the 2010 edition of The Lawyer’s Guide we have updated all chapters to reflect the current status of the law as of the fall of 2009. We have added a new chapter on developing the record and rebutting the 2005 PDRS consistent with the most current decisional case law. We have updated Chapters 1 through 7 and completely revised Chapter 8, which is renamed “Developing the Record and Rebutting the 2005 PDRS.”
By all means, use this guidebook to assist you in understanding the AMA Guides and obtaining accurate impairment ratings. Attorneys, judges and physicians now have to become familiar with all chapters of the AMA Guides 5th Edition in order to obtain accurate ratings, and a clear understanding of the 5th Edition will assist you in developing the record in light of current case law. Whether you are counsel for the applicant or defense, a judge or a doctor, this guidebook will assist you in understanding the issues and making decisions about how to present and develop evidence in your cases—whether your mandate is to raise or lower a WPI rating or to do what is legally mandated and required of your role in these cases.
Read the chapter on rebutting the 2005 PDRS—you will see how the examples make sense. Remember, the AMA Guides is a consensus driven document and is not based on any empirical research, scientific studies or clinical trials. For example, there is no empirical evidence that every person who has a one-level lumbar herniated disc has a 10-13% WPI, while a person with a recurrent hernia has a 19% WPI in comparison. As one orthopedic surgeon told us, there are three orthopedic chapters in the AMA Guides 5th Edition, but orthopedic medical conditions are separately listed and described in three volumes of medical text books!
Use the 2010 guidebook as you did before—to make sure the physicians are properly evaluating cases and basing their conclusions on permanent objective medical findings and reasonable medical probability. We have included an explanation of the mathematical formula that formed the basis of the DFEC adjustments in the 2005 PDRS that also forms the basis of the WCAB’s decision in Ogilvie I and II. We never thought during the course of practicing workers’ compensation law for the last thirty years that we would be teaching algebra! Happy reading!
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To order your copy of the 2010 Edition of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, click here. Price $71, effective through 12/31/2010.