The first California cases going back to the drawing board due to the Workers’ Compensation Appeals Board (WCAB) decisions in Almaraz v. Environmental Recovery Services (State Compensation Insurance Fund) and Guzman v. Milpitas Unified School District are those where the injured worker was permanent, stationary and near the end of the claims settlement process. Also, some closed cases are being reopened.
With unrepresented workers, the workers’ comp judges are ordering employers to reevaluate injured workers in light of these cases. If injured workers are represented by counsel, then the requests are usually in the form of having AMEs who prepared the initial evaluations reevaluate the injured workers.
Well, that sounds simple enough, doesn’t it? But the problem is that the evaluating physician doesn’t have much more to go on than his or her sense of what is equitable, proportionate and fair—in the parlance of Appeals Board commissioners.
There is a general sense, although it is not always the case, that the rating produced by application of the AMA Guides will not be any of those things. There is also a general sense that using the methodology and numbers from the 1997 Permanent Disability Rating Schedule (PDRS) is objectionable because the commissioners decided that the old schedule – and the old statute – were significantly changed and thus you can’t move forward by going back to square one.
What then is the physician to do? There is a requirement that this new “Almaraz Analysis” still must meet the substantial-evidence standard for medical opinions. Consequently, pulling a number out of thin air is not likely going to meet with approval from most boards. The WCAB’s decision alludes to a number of possible ways to adjust the impairment rating produced by the AMA Guides, Fifth Edition. These include vocational analysis and consideration of the injured worker’s age and occupation. (Don’t we do that already?) But if all else fails, simply chuck the guides out the window and see what else is out there. If it has a modicum of science attached to it (maybe even other editions of the guides or impairment rating manuals from other jurisdictions or professional organizations), this likely will pass muster and you’re on your way to finding the fairness grail.
But the workers’ comp judge is still the final arbiter of fairness. If nothing else was clear in these decisions, one message came through loud and clear – throw as much information as you can into the case and let the judge sort it all out. For applicants, this comes as no terrible burden because employers have to pay for it. (Remember Costa?) Furthermore, the applicant attorney must go through this analysis in virtually every claim, for regardless of whether it results in a higher rating, it borders on malpractice not to try.
For the claims administrator, it means more and more LAE, higher indemnity costs and the great uncertainty of not knowing how much to reserve for future payment of claims.
Ratings produced by the PDRS are now simply markers. It is the first step in a more complicated, more expensive and more subjective process. There are no standards to develop an alternative rating; little guidance (other than where the guides produced no impairment rating or where the injury is not recognized in the guides) on how to produce these alternative ratings; and little expectation that a workers’ comp judge is going to do anything other than try to squeeze more PD out of every claim and find PD where the current schedule indicates there is none.
What is an equitable, proportionate and fair impairment rating? The workers’ comp judge may not be able to define it in any given case, but to paraphrase the late U.S. Supreme Court Justice Potter Stewart, they’ll know it when they see it.