Upper Extremities: Giving Credit Where Credit is Due

Upper Extremities: Giving Credit Where Credit is Due
by Donald R. Barthel, Esq.
Every week B&B's Rating and Consultation Services is requested to review and analyze MMI reports purporting to determine impairment for upper extremity injuries. Inasmuch as range of motion (ROM) is the primary AMA-based method used for upper extremities (see AMA Guides, p. 450-479), we see this methodology misapplied time and again. Invariably, the doctor has overestimated the true level of impairment.

Where do the doctors go wrong? Most physicians simply identify the injured joint, measure that joint's remaining ROM, and apply the applicable AMA chart(s) to obtain their final Whole Person Impairment (WPI) percentage. For example, in the case of an injured right shoulder, if the doctor measures 160° of shoulder flexion, he/she uses Figure 16-40 (page 476) to award 1% UE (which converts to 1% WPI).

The Audit Unit Is Made Up of People Too

The Audit Unit Is Made Up of People Too
by Sherri Dozier
Do I have your attention? Allow me to explain: The Audit Unit is made up of people with backgrounds not dissimilar from most experienced claims professionals. They are given a set of labor codes and case law, along with orders to go out and apply them.

Sounds similar to California's litigation system, doesn't it? One side views a law one way; the other side has a different perspective. The difference? The Audit Unit has authority to assess penalties based on its own legal interpretations, much like the IRS. This recognition can go a long way towards assisting you in handling a dreaded audit.

Bradford and Barthel, LLP is committed to servicing to each client. This was evidenced in a recent venture in which we aided a client to prepare and survive an audit. Much can be learned from that once-in-a-lifetime (hopefully!) experience.

Torres Commissioners: Go Back to School

Torres Commissioners: Go Back to School
by Louis Larres, Esq.
When I graduated from college, I never thought I would have any real need for what I had studied. After all, that was the whole reason I went to law school. What did I study, you might ask? That all-useful and everyday-practical subject called linguistics, the study of language.

Along came SB 899 and the enactment of Labor Code section 4660(d), and not too long thereafter I found myself in front of a workers' compensation judge arguing, with all due respect of course, that he had no idea what he was talking about. From the perspective of grammar and syntax, anyone could see that the phrase "indicating the existence of permanent disability" modified both "primary treating physician's report" as well as "comprehensive medical-legal." I have to admit that for the first time in my legal career. I could see a glazed look come over the eyes of this judge as I threw around terms such as antecedent, modifier, referent, gerund, and relative clause. I was in my element, and he was most assuredly out of his.

The Case of the Missing Comma

The Case of the Missing Comma
by Donald R. Barthel, Esq.
Effective January 1, 2005, California's newest Permanent Disability Rating Schedule (PDRS) began to be implemented. This PDRS is used to convert impairment (obtained via the AMA Guides) into PD. This conversion takes place by adjusting for diminished future earning capacity (FEC), occupation, and age.

As we all know, the 2005 PDRS/AMA Guides tend to result in significantly less PD than did the 1997 PDRS. Thus, huge battles are raging all over California as applicants push to have their cases rated via the old 1997 PDRS, while defendants push to apply the AMA Guides/2005 PDRS. As these battles continue, there is a recurring theme. Applicants argue there are three exceptions that permit a pre-1/1/05 date of injury to be evaluated using the 1997 PDRS; defendants assert that there are only two such exceptions.

AMA Selects Don Barthel

AMA Selects Don Barthel
by Mark Fletcher, Esq.
It was recently announced that Don Barthel's name was submitted to the American Medical Association as potential expert reviewer of the AMA Guides (6th edition), which is scheduled for publication in late 2007. That nomination received the AMA's approval on April 21, 2006, when Guides' Senior Developmental Editor Nancy Baker announced Mr. Barthel had been "selected as a reviewer due to [his] recognized expertise and knowledge in [his] field."

Epilogue: Keep California Out of the Bedroom!

Epilogue: Keep California Out of the Bedroom!
by Mark Fletcher, Esq.
 
In our last issue in the article entitled Keep California Out of the Bedroom, we discussed numerous strategies to defeat CAAA's plans to make you overpay permanent disability. We learned that a recent CAAA convention was used to unveil strategies to misapply sleep disorders and other AMA-based impairments in order to increase impairment ratings.



 



 
In particular, CAAA has focused on:
  1. Obstructive sleep apnea and hypersensitivity pneumonitis
    (Chapter 5, Respiratory System)
  2. Sleep arousal disorders
    (Chapter 13, Central and Peripheral Nervous System)
  3. Painful Conditions
    (Chapter 18, Pain)

WCAB Nixes Apportionment Efforts

WCAB Nixes Apportionment Efforts
by Don Barthel, Esq.
The WCAB, in its 2/27/06 en banc decision, Pasquotto v. Hayward Lumber, WCC 31452006, dramatically gutted the applicability of Labor Code §4664's apportionment tools. Labor Code §4664, one of California's two apportionment statutes, provides, in part:

"If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disablity exists at the time of any subsequent industrial injury."

At issue in Pasquotto was whether an Order Approving a Compromise and Release is a "prior award of permanent disability." The WCAB unanimously held that it could not be, at least not "without more...", thereby robbing employers of Labor Code §4664 apportionment when the injured employee's prior industrial injury was resolved via a Compromise and Release rather than a Findings and Award or Stipulated Award.

Keep CAAA Out of the Bedroom

Keep CAAA Out of the Bedroom
by Mark Fletcher, Esq.

 

The California Applicant's Attorneys Association (CAAA) recently met in Palm Springs to discuss ways to re-energize their post SB-899 practices. No longer content to keep their heads in the sand and deny that the laws have changed, CAAA has started to look for creative ways to "twist" the new laws to their advantage. The most recent plan of attack: misapply sleep disorders and other AMA-based impairments to increase impairment ratings.

CAAA is focusing on three primary aspects of the AMA Guides (5th Edition) to increase impairment and, ultimately, disability:


  • Obstructive Sleep Apnea (Chapter 5, Respiratory System)
  • Sleep Arousal Disorders (Chapter 13, Central and Peripheral Nervous System)
  • Pain (Chapter 18)
The strategy? Dramatically increase orthopaedic impairment rated per Chapter 15 (The Spine), Chapter 16 (Upper Extremities), and Chapter 17 (Lower Extremities), by misapplying Chapters 5, 13 and 18.

You can defend against such overreaching! There are numerous defenses, and they are all found in the AMA Guides.

Medical Provider Network CAAA Fights Transfers. How Can You Fight Back?

Medical Provider Network
CAAA Fights Transfers. How Can You Fight Back?

by Sherri Dozier
 
How long does it take to create a habit? Some say twenty-one days. Others will tell you four weeks. Wait a minute. This is workers' compensation folks! One year later, and we're still not in the Medical Provider Network (MPN) habit.

Despite allegations to the contrary from CAAA, the legislative intent behind MPNs is not to conspire against injured workers. The goal, rather, is to provide the transition of an injured worker's medical treatment to an employer's MPN unless one or more exceptions are applied. Exception, according to Webster's Dictionary, means "that which is different, that which is excluded." It means it doesn't happen very often (despite CAAA's efforts to the contrary)!

So what are those narrowly defined exceptions to the transfer of medical care to your MPN?

Don Barthel Becomes Newest Advisor to A.B.I.M.E.

Don Barthel Becomes Newest Advisor to A.B.I.M.E.
by Mark Fletcher, Esq.
In a dramatic turn of events, Dr. Mohammed I. Ranavaya, MD, MS, CIME, FFOM, FRCPI, the president of A.B.I.M.E. (American Board of Independent Medical Examiners), recently announced the name of the newest member of A.B.I.M.E.'s Board of Advisors: B&B's very own Donald R. Barthel.

A.B.I.M.E. (http://www.abime.org), an internationally recognized not-for-profit leader in the credentialing of physicians who have demonstrated a mastery of the AMA Guides, has always been led by physicians. However, in recognition of Don Barthel's own mastery of the AMA Guides and his unceasing efforts to educate California's industry leaders in the expert application of this treatise, Dr. Ranavaya publicized Don Barthel's appointment to A.B.I.M.E.'s Board of Advisors as that body's first non-physician member.

Sneak Preview of the AMA Guides' 6th Edition

Sneak Preview of the AMA Guides' 6th Edition
by Don Barthel, Esq.
Don Barthel and Mark Fletcher, managing partner, recently met with members of the American Medical Association in Chicago to obtain insights into the forthcoming 6th Edition of the AMA Guides.

As you are all aware, California recently adopted the AMA Guides for the determination of permanent impairment in workers' compensation. Inasmuch as jurisdictions often adopt the most recently published edition, Bradford & Barthel keeps on the "cutting edge" as we observe the new edition of the AMA Guides as it is drafted and published.

Bradford & Barthel, Proudly Announces That Vincent J. Rodriguez, M.D., J.D., Has Joined the Firm

Bradford & Barthel, Proudly Announces That Vincent J. Rodriguez, M.D., J.D., Has Joined the Firm
by Don Barthel, Esq.
In keeping with Bradford & Barthel's commitment to cutting edge analysis of California’s ever changing Workers' Compensation world in which we live, we are pleased to announce that Bradford & Barthel has recently retained the services of Vincent J. Rodriguez, M.D. Given Dr. Rodriguez' unique combination of talents and skills as a medical doctor and a JD, Bradford & Barthel has placed itself in an outstanding position to assist clients in their efforts to attack unfavorable medical reports from a medical and legal perspective.

Based in B&B’s Fresno office, Dr. Rodriguez is available to you to assist in your analysis of medical-legal reports. Obviously, he is also of great assistance deposing medical professionals and drafting letters to physicians to ensure that the doctor applies the AMA Guides appropriately. He is also available for AMA Guides in-house training and seminars.

Please feel free to contact Dr. Rodriguez at our Fresno office number at (559) 442-3602.

Welcome aboard Dr. Rodriguez!

Don Barthel is a founding partner of Bradford & Barthel, LLP.