DEU Asserts Raters Have "Discretion"! (Uh Oh!)

DEU Asserts Raters Have "Discretion"! (Uh Oh!)
by Donald R. Barthel, LLP
The 2005 Permanent Disability Rating Schedule (PDRS) has been in effect since 1/1/05. Yes, it has been nearly 4 years since its inception (where has the time gone?)!

Have you mastered rating for DFEC1, occupation, and age? Are you sure?

How about this little brain teaser?

Per the 2005 PDRS, "[m]ultiple impairments involving the hand or foot are combined using standard AMA Guides protocols."2 The AMA Guides (5th), instruct:

"The total hand impairment rating is determined by adding the hand impairment values contributed by each digit." (p. 440, AMA Guides)

Help! This MPN Is Out To Get Me!

Help! This MPN Is Out To Get Me!
by Louis Larres, Esq. and Scott Rountree, JD 


I'm sure you've often wondered during a quiet moment alone, "Hey, are these Medical Provider Networks even constitutional?" Or perhaps you've worried, "If I litigate and lose on AOE/COE, have I waived the right to require applicant to treat in my MPN?"

You haven't? Good news! Someone else has wondered about, worried about, and litigated these issues for you–someone with too much time on his hands.1

From the Fresno WCJ to the California Supreme Court, B&B recently defended against an applicant who was bound and determined to undercut your ability use your MPN. Applicant claimed MPNs could not be used in denied cases. Of even greater concern, applicant attacked the constitutionality of MPNs themselves. Applicant went down in flames.2

$$$$ Tens of Millions in Savings $$$$

$$$$ Tens of Millions in Savings $$$$
Don Barthel recently announced that B&B's Rating Services "has literally identified tens of millions of dollars in savings for our clients." Per Don, "PTPs and medical-legal examiners in California continue to misapply the AMA Guides. Whether this represents simple mistakes is not always clear, but the result is. About eight out of ten of the reports we review overstate the true permanent disability value."

What is the largest saving identified in a single case? "We've seen reports that literally rated 100 percent. In one case, after a full analysis was performed, we were able to demonstrate that, per the AMA Guides, only 12 percent [PD] was justified. That's over a $1,500,000 swing!"

AD to Employers: "You're On Your Own!"

AD to Employers: "You're On Your Own!"
by Donald R. Barthel, Esq.
 
AME vs. QME? Which approach is preferable? The answer, of course, is: "It depends... on many things."


Prior to SB 899, represented cases typically involved either battling QMEs or an AME. Each side selected their own doctor (who, more often than not, would report in a manner reflecting the views of the party who made the referral). Applicant's selected QME was often wildly liberal; the defense physician tended to be more conservative. Alternatively, if the parties wished to "split the baby," one or more AMEs were used.

 

With the advent of SB 899, things have changed dramatically. No more battling QMEs. Options are now limited to:
  • Living with the PTP's findings (in which case this article is irrelevant... read no further if you and your opponents always agree with the PTP's findings!)
  • Agreeing to an AME
  • Relying on a state-generated panel of QMEs1

"Ten Years After" at B&B!

"Ten Years After" at B&B!1
by Donald R. Barthel, Esq.
 

Congratulations are in order for B&B's Managing Partner, Mark S. Fletcher, and Tahmeena I. Ahmed, the Partner and Managing Attorney for our Tarzana office.

Mark recently celebrated his tenth year at B&B. In that time, Mark's skills, talents and hard work quickly moved him through the ranks from Associate, to Managing Attorney and Equity Partner, to his current position: Managing Partner. In that capacity, Mark oversees the day-to-day operations of the firm's thirteen offices. He has served in his current capacity since 2003. 





Tahmeena, too, will be celebrating her tenth anniversary with B&B in July. Originally hired as an Associate, Tahmeena soon distinguished herself as a top-notch attorney. She quickly earned the right to be the Managing Attorney in B&B's Tarzana office and was thereafter made an Equity Partner in April of 2002. During her tenure as the managing attorney, the Tarzana office has flourished, growing from 2 to 13 attorneys.

Mark & Tahmeena: You're not getting older, you're getting better! Congratulations!

Don Barthel is a Founding Partner of Bradford & Barthel, LLP and founder of B&B Rating Services.


1 Apologies to the band, Ten Years After, who some of you will remember was founded by Alvin Lee and Leo Lyons, and who rocketed to fame on the strength of their breakthrough American appearance at Woodstock and their megahit "I'm Going Home."

How to "Discriminate" on the Basis of Age, Sex, Etc. or "Lies, Damned Lies, & Workers' Comp"

How to "Discriminate" on the Basis of Age, Sex, Etc. or "Lies, Damned Lies, & Workers' Comp"
by Donald R. Barthel, Esq.
Governor Schwarzenegger signed into law the workers' compensation reform package known as SB 899 on April 19, 2004. Unfortunately, SB 899 has generated a pack of lies.

What's the biggest whopper you've heard about SB 899? Recall some folks (including a certain San Francisco WCJ), arguing that the 2005 Permanent Disability Rating Schedule and AMA Guides didn't apply to ANY pre-1/1/05 dates of injury?1 That was a doozy! Or how about CAAA's2 insistence that a mere microscopic discectomy qualified as an "amputation" and, therefore, permitted applicants to avoid the two-year temporary disability cap?3 I had personally believed that one represented the most outrageous claim about SB 899 we would hear. Wow! Was I ever wrong!

The Biggest Lie: "Apportionment is discrimination! Apportionment is discrimination!"
At the latest CAAA convention4, Sen. Carole Migden, D-San Francisco, led nearly 2,000 applicant attorneys in this chant as a way of introducing her new bill (Senate Bill 1115). This proposed law states that "race, religious creed, color, national origin, age, gender, marital status, sex, or genetic predisposition shall not be considered to be a cause or other factor considered in any determination" of permanent disability.

There's only one little problem... It's all lies, and, apparently, a calculated maneuver to undercut huge defense advances on apportionment issues. 5

How You Can Prove Genlyte & Zenith Courts Wrong!

How You Can Prove Genlyte & Zenith Courts Wrong!
by Donald R. Barthel, Esq.
The Problem
Oh no! California has, yet again, another split decision!

Remember the confusion last year? After years of following the apportionment rules set down 30-plus years ago in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1 (Fuentes)1, the various Courts of Appeal interpreted the impact of SB 899 on this issue with different results. Some concluded we were to continue to apportion by subtracting percentages (Formula A). Others concluded that we were to apportion by subtracting money (Formula C). Faced with conflicting instructions from the courts above, the WCAB punted, refusing to issue apportionment decisions until the California Supreme Court weighed-in.2

It has happened again!