Guzman & 6th DCA: WCAB Rubberstamp or Limitations on Misapplying the Guides?

Last month the 6th DCA handed down the latest—and most authoritative—word on rebutting the AMA Guides. While the Court of Appeal agreed with the WCAB's Almaraz/Guzman II determination that (a) the AMA Guides is rebuttable, and (b) physicians may, in certain circumstances, apply alternative chapters, methods and tables, the DCA signaled that such an approach should be the exception rather than the rule.

"Give Me a [Conservative] Sign"
During the past year and a half in the post-Almaraz/Guzman world, we've seen attempts to apply alternative chapters, tables and methods in even the most mundane cases. Indeed, the more "vanilla" the case (back strain, for example), the lower the WPI produced by a strict application of the Guides...and, of course, the greater the incentive for physicians to creatively apply alternative chapters and methods.

No longer!

Intl Awards Salute B&B's Tech Savvy

The Envelope Please.

The red carpet was rolled out and leaders in legal technology from around the world came to Las Vegas last week to participate in the International Legal Technology Association's (ILTA)1 2010 "Strategic Unity" conference and to learn who would receive the industry's highest honors and accolades. When the envelopes were opened and the winners announced, Bradford & Barthel, LLP (B&B) had won...TWICE!

ILTA presented both B&B and the firm's Director of Knowledge Management, Eric Hunter, with ILTA's 2010 Distinguished Peer Awards. Competing with huge international firms employing hundreds—and even thousands —of employees, B&B and Eric Hunter managed to edge out the competition to receive the "Innovative Member of the Year" prize and the "Knowledge Management Champion of the Year" title.

To Answer or not to Answer...

An Application for Adjudication (Application) is part and parcel of workers' compensation litigation. In a nutshell, it is the opening document filed to establish the WCAB's jurisdiction and to get the matter moving along.

The vast majority of Applications are filed by the injured worker (IW), but may also be filed by a defendant or lien claimant. The Application sets forth the issues for which the filing party seeks relief, such as TTD, PD, medical treatment, voucher, etc. Typically the applicant's attorney files the Application, works up the case and —upon completion of discovery—the case is settled or goes to trial.

Patricia Carlos, Esq. Named Asst Mng Atty in Tarzana

It is my pleasure to announce that Patricia Carlos will be our new Assistant Managing Attorney for the Tarzana office. Pati recently began her fifth successful year with the firm. She brings with her a multitude of skills, including her administrative strategies, shrewd negotiation talents, and an undying commitment to B&B's clients.

Tahmeena Ahmed
Managing Attorney, B&B's Tarzana Office

The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable)

by Don Barthel, LLP
You have the right to attempt to resolve virtually any/all workers' compensation issues by going to an Agreed Medical Examiner (AME). Presumably all adjusters and workers' comp attorneys have agreed to one or more (likely many more) AMEs during their careers.

Why?

I've often posed that question to participants in the Continuing Education (CE) lectures that I present, usually two or more times a week. The answer? It typically follows under one of three general headings:



  1. "I want to rely on a doctor I know."
  2. "It's best to use a doctor with a track record."
  3. "Who knows who’s going to be on the PQME panel?"

While there are times that employing an AME's services may be the best plan of action, I strongly believe that, far more often than not, reliance on PTPs and/or PQMEs is a safer (and less expensive) alternative.

Apportionment - Simplified - The Glass of PD Method

In last month's issue (http://www.bradfordbarthel.com/BLOG/V5N1/Five-5.htm, I described how the DEU's erroneous approach to apportionment inappropriately expands employer PD exposure. In this article I use the a "Glass of PD Method" to illustrate this point.

Assuming an empty glass represents 0% PD and a full glass 100% PD, let's review an example from our last article. Applicant suffered accepted injuries to five different body parts, A through E, as outlined in the table below. The PD for each body part received at least 50% apportionment. In another words, the employer was found liable for no more than half of the PD associated with each of the body part. Without apportionment, the total PD was 97%.

Can you guess how much PD the employer must pay? Let's review. The total PD without apportionment stands at 97%. The employer is, based on the apportionment determinations, responsible for no more than 50% of the PD for any one body part. Thus, logic would suggest the employer is liable for something less than half of 100% PD.

"WRONG", says the DEU.

TOP SECRET - Do NOT Read! aka "Collaboration in the Cloud - A Quick Look at Knowledge Sharing"

Welcome to the second in an ongoing series of B&B's "TOP SECRET—Do NOT Read!" articles dealing with the future (read: "now") of communication. Are computers involved? Yes. The internet? Yes. Lots of technology. Yes....BUT don't let that turn you off. The advances planned for B&B do deal with "technology", BUT not that icky, scary, mind-numbing stuff of the past. It's 2010, folks. If, at this late date, the technological "advances" and "improvements" are not simple and easy to use, then they ain't improvements at all.

TOP SECRET - Do NOT Read!
aka "Collaboration in the Cloud - A Quick Look at Knowledge Sharing"

by Eric Hunter, Director of Knowledge Management

In our last B&B BLOG, we introduced the concept of "cloud computing" and the future it holds for B&B in specific and the workers' compensation industry generally. In this edition, we answer the question you've no doubt asked yourself:

So we’re on the cloud... now what? Where (and how) does all that projected collaboration come into play?

Take a look at your department structure and layout, whether it be a claims department, law firm, or any other knowledge-intensive professional setting. How do you currently share information? How is knowledge distributed? And how do you currently train (that is, share knowledge)?

The key to using cloud-hosted collaboration is rethinking your approach to knowledge sharing and information distribution. Once in the clouds, your entire collaboration suite is web-based, and it's built to be interactive.

Need an example?

I Spy...for Free!

by Don Barthel, LLP
Suspicious about an applicant's veracity, but can't quite figure out why?

Trying to decide whether to assign a case to a private investigator?

Questioning whether your hunch can justify the costs of hiring your favorite gumshoe?

Consider saving lots of money by performing your own 15-minute background check...for free! Internet searches are quickly becoming an easy, effective, and inexpensive (not to mention…FUN!) way of researching an applicant's background and verifying their credibility.

She's Doing What?
The wealth of information readily available on the internet first became clear to me last year while defending the orthopedic/psych case of "Jill,"1 Jill had happily collected TD for over a year and seemed likely to continue on this course for a long while. Jill had provided a local cell phone number in her contact information, but almost immediately retracted the number—stating it was a "mistake"—and replaced it with what she described as her "real" number.

Huh? "Real" phone number? As opposed to what...a "fake" one? This seemed suspect, but what did it mean?

Spinal Surgery Authorization Process OR Pain In The Neck?

by Don Barthel, Esq.

Just received a primary treating physician's (PTP) request for authorization to provide spinal surgery? Think the proposed surgical treatment isn't reasonable and necessary?1 Don't stop to smell the roses...you're running out of time (literally!).

The WCAB's most recent (11/19/09) en banc decision, Cervantes v. El Aquila Food Products Inc, requires that you jump through so many hoops to deny the authorization request that even the WCAB Commissioners admit it "may seem redundant"!2 And all this redundacy must be completed within ten (10) days!

Your Choices Are GONE!
Per a prior WCAB Panel decision, Brasher 3, you had some choices when dealing with spinal surgery requests, such as:
  • Relying exclusively on UR's determination and letting applicant try to obtain a timely Labor Code 4062(b)4 report to fight UR determination, or
  • Obtaining both a UR determination and your own 4062(b) report, or
  • Completely opting out of UR and disputing the spinal surgery recommendation using only a 4062(b) report.

All your choices have disappeared!

B&B Announces Newest Partners

B&B recently announced its newest partners: Farai Kadzirange (Ontario), Sean Shabestari (Ontario), Patricia Carlos (Tarzana), Garrett Kuehn (San Diego), Tom Murphy (Tarzana), Peter Fitzpatrick (Ontario) and Monica Coats (Fresno).

Citing the new partners' "outstanding service" and "aggressive, client-oriented approach," B&B noted that its newest partners bring nearly 1½ centuries of legal experience to bear. It is the quality of work, attention to detail, and dedication to our clients this group consistently demonstrates that has permitted B&B to distinguish itself as one of California's truly premier workers' compensation defense firms.

Congratulations, Class of 2009!


Mark Fletcher is the Managing Attorney of Bradford & Barthel, LLP.

Technology Forecast: Clouds Ahead



TOP SECRET - Do NOT Read!

Hey, we told you not to read this! Are you gone?

Ok, now that everyone has left, we can discuss this top-secret information...

B&B's Knowledge Management Department is leading the industry developing cutting-edge technological advances to benefit our clients and B&B's own staff, attorneys, and managers in ways that heretofore were unimaginable.

Do you start to fall asleep even at the mere mention of "technology"? Are you "too old" for all that "technobabble"?

Think again.

The DEU Violates the Labor Code and Costs You Money (Here's How to Prove It)

The Problem

This is not another long-winded treatise on how to get an apportionment determination approved by a WCJ. This article assumes that the apportionment is already approved or otherwise stipulated. Rather, this essay is aimed at ensuring that the DEU's misapplication of the 2005 Permanent Disability Rating Schedule (PDRS) and relevant apportionment labor codes1 does not cost you money!

The 2005 PDRS and AMA Guides (5th) introduce numerous ways to add and combine numbers. Inasmuch as the PDRS and Guides are, for legal purposes, mere regulations, whereas the applicable Labor Code sections are statutory, Labor Code 4663 and 4664 trump any conflict that may arise as between the Labor Code and Regulations. The DEU, too, has gotten into the mix, dictating an apportionment methodology that frustrates Labor Code intent and increases your PD exposure.

What is the DEU doing wrong?