The year 2010 was a very interesting year in our workers’ compensation system — the sixth year of SB 899 and now the sixth edition of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation. We have seen the evolution of case law on permanent disability from en banc decisions in the WCAB in Almaraz-Guzman I and II to a published decision of the 6th District Court of Appeal in Milpitas USD vs. WCAB (Guzman), now nicknamed “Guzman III.” We now have clarification from another WCAB en banc decision in Blackledge vs. Bank of America that describes the division of labor between the judge, the rater and the parties in the development of formal rating instructions. We are waiting for an opinion from the 5th DCA in Almaraz and from the 1st DCA in Ogilvie. Meanwhile, we have seen some interpretations of the application of Ogilvie II in subsequent WCAB panel decisions.
We have a period of uncertainty in our workers’ compensation system as we always do in an election year with a potential change in DWC administration on the horizon in 2011. Meanwhile, all of the stakeholders continue to nudge each other around for leverage with the legislature, the DWC and the governor under the politics governing work-related injuries. All those of us in the trenches can do in the meantime is hunker down and slog along with our cases, whether we represent the injured worker or employer and hope for the best.
We were extremely honored in 2010 for being awarded the inaugural Division of Workers’ Compensation Community Service Recognition Award by the DWC administration. In addition, it was quite rewarding to find out from a friend in Baltimore, Maryland, that the 5th edition of the Lawyer’s Guide was cited as authority in a published Virginia Court of Appeal case, see Fairfax County School Board v. Martin-Elberhi, 55 Va. App. 543, 687 S.E.2d 91 (2010), regarding how WPI ratings for hip replacements are calculated.
The 2011 edition of the Lawyer’s Guide presents a brand new Chapter 9 called “Medical Information Every Lawyer and Judge Should Know.” This chapter includes medical information excerpted from depositions of physicians, current medical research and outside medical resources that inform you about common medical conditions and medical issues we see in our cases — spinal injuries, knees, shoulders, wrists, hands, thumbs, chronic pain syndromes, heart, cardiovascular, strokes; drug addiction and dependency, Benson issues and the AMA Guides, and when a risk factor becomes causative. We have also included a handy reference that lists medications we commonly see in our cases while reviewing medical records and reports with their brand names listed alongside their chemical names so that you can quickly see if an injured worker is taking certain types of medication that indicate a medical condition exists.
We have extensively updated Chapter 3, the chapter-by-chapter analysis of the AMA Guides, so that you can see how strict WPI ratings can be determined directly from the descriptions and measurements of the AMA Guides 5th Edition. After all, current case law requires a physician to provide a strict WPI rating first and then determine whether or not it is an accurate and reliable WPI rating that describes an injured worker’s disability and, if not, then to provide an alternative WPI rating that is the most accurate and reliable, and the rationale behind his or her opinion.
We have updated Chapter 2 to include a summary of the Blackledge case on formal rating instructions, and WCJs will want to refer to this section in the guidebook to choose which formal rating instruction method he or she prefers to use in order to comply with the WCAB en banc decision.
Finally, we have updated Chapter 8 on alternative rating methods and rebuttal of a strict WPI rating by adding a summary and commentary on Guzman III and an update on how to apply the principles from the en banc decision in Ogilvie II with the “Montana” factors. If you plan on rebutting a DFEC adjustment, you must use this section from the guidebook as a check list — it involves much more than just applying the algebra. In fact a WCJ told us he used our article on the “The Skinny on Shini” as a checklist in his analysis of a case where the applicant tried to rebut a scheduled DFEC adjustment under Ogilvie. The article is now part of Chapter 8 in this edition of the Lawyer’s Guide.
The year 2010 has been a banner year for updating this book, along with participating as a contributing author to the brand new title from LexisNexis, The Complete Guide to Medicare Secondary Payer Compliance, and serving as Editor-in-Chief of Herlick, California Workers’ Compensation Law. We appreciate your feedback on our publications and we look forward to keeping you updated on developments in 2011 as we expect continuing changes in case law, regulations and statutes that may affect our law practices.
We hope these publications continue to provide assistance to you in understanding and applying the AMA Guides in your cases and please, keep asking us your questions about the law, medicine or both.
Robert G. Rassp, Esq.
Order the new 2011 Edition today. Books will ship to customers in the first half of January 2011. The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, by Robert G. Rassp
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