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Friday, March 19, 2010

Is your Lawyer in touch with the Future

The practice of law often seems stodgy and full of old white men shouting about dusty and forgotten documents. Which may be true at times.

In reality, the legal field is ever changing. Lawyers are constantly trying to figure out how to conform the law to advances in technology and the changing needs of society.

Some of these changes are vast and far reaching, often decisions of the supreme court of this affect. Other decisions issued by a lower court can have a substantial impact on a single practice area.

Such is the case of the recent Decisions of Almaraz/Guzman and Ogilvie.

Each of these cases is currently on appeal and the law could change again. Regardless, your attorney should be familiar with these cases and should discuss with you raising these issues at trial.

The decisions revolve around rather complex principles in the California Workers' Compensation system so I will be using some oversimplifications.

This all makes sense with historical context:
Pre 2004 - Workers Compensation in California operated under the "old rates" which provided whole person impairments to injured workers as a percentage impairment. The percentage equalled a dollar value. Low value cases would be in the 20% range which equalled aproximately $15,000.

2004 - Arnold Schwarzenegger following his campaign promise on Workers Comp reform passes SB899 which demands objective findings to support the awards in accordance with the AMA guides 5th edition. Further the whole person impairment percentages are revised.

Post 2004 - Low value cases are likely to have a value below 10% whole person impairment which equates to approximately $6500.

Post 2004 the value of cases was substantially diminished. There is a separate debate as to whether the new laws adequately compensate injured workers. That is not the discussion here.

In order to provide for injured workers, plaintiff's attorneys got creative and found some ways to get the value of cases higher.

Almaraz/Guzman - Under SB 899, a whole person impairment must be based on objective criteria and determined in accordance with the AMA guides 5th edition. The guides provide the basis for rating impairments. The decisions in Almaraz/Guzman permit a doctor to look beyond the strict rules laid out in the guides so that the whole person impairment attributed to the worker "Accurately and Adequately" describes their level of impairment.

What this means is that the doctors are still bound by the AMA guides but may take a more liberal view of the guides, using other sections and analogies to other injuries in order to more "adequately and accurately" reflect the injured workers injury. This can increase a whole person impairment.

The case law indicates there are several factors where the Almaraz/Guzman analysis will be more at issue:
1. Is this a post surgery case. Surgeries are rated lower in the new guides which may show that the injured worker is not "adequately" or "accurately" compensated in the claim.

2. Can the worker return to work. If the injury puts the person entirely out of work it is more likely than not a very serious injury which would indicate a higher level of compensation.

3. Age - If the individual is found to be older, their injured may have a greater impact on their ability to return to work which may not be accounted for in the rating.

4. Complicating Factors - This refers to extraneous factors which are not considered in the AMA guides which still should be considered. questions like did the surgery work? is the injured worker likely to improve over time.

5. Is there an obvious or patently low WPI for the injury described.

The above issues should be used by your attorney in deposing the doctor and determining whether an Almaraz/Guzman analysis is appropriate in your case.

Next week a discussion of Ogilvie.

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