Today the WCAB issued revised en banc decisions in the Almaraz/Guzman cases and in Ogilvie.

In a nutshell, the WCAB has substantially trimmed its prior expansive opinion in Almaraz/Guzman. Doctors will now not be free to go beyond the AMA guides. But they will be able to analogize and use various parts of the guides.

It appears that in Ogilvie the WCAB largely retained its prior analysis. The schedule is still rebuttable, but there are limitations on how that can be done. As before, Commissioner Caplane dissented.

I'll be doing more detailed analysis in the coming days. Meanwhile, here is a link so you can download the decisions yourself:

Almaraz/Guzman:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf

Ogilvie:

http://www.dir.ca.gov/wcab/EnBancdecisi ... ep2009.pdf

As with prior decisions, there is always a note of caution. These decisions have such wide import that it's almost certain there will be appeals filed.


Stay tuned.

Julius Young
www.boxerlaw.comn

One of the consequences of the 2004 California workers' comp reform has been the shrinking of the pool of attorneys representing claimants. Experienced attorneys have been closing up shop, and there is barely a trickle of new attorneys coming into the applicant-side practice.

As with treating doctors, there is anecdotal evidence that in many areas of the state workers are having a hard time finding representation.

Can a worker seeking representation enter into a contract to pay hourly fees to an attorney? No, unless the fee agreement is approved by the workers' compensation judge.

The 3rd District California Court of Appeal has just released an opinion in a case dealing with that situation. The case, Fred Vierra v. WCAB and Collins Pine Co., can be seen in .pdf format here:

http://www.courtinfo.ca.gov/opinions/do ... 054091.PDF

In Vierra, the 3rd District court upheld a WCAB decision that the fee agreement was unenforceable, the WCAB had not approved the agreement which called for hourly fees.

Apparently Vierra was fighting to maintain a six-figure permanent disability award. The insurer had petitioned to reduce the award. Presumably the insurer was represented by lawyers either in-house (on the payroll) or on the meter (paid by the hour).

Couldn't Vierra defend himself and his award by hiring an attorney to be paid by the hour? If the carrier can pay for representation, why can't Vierra?

Not gonna happen. Not at least in the manner Vierra's counsel drafted the fee agreement. WCAB approval was necessary to make the agreement valid.

However, Vierra does not indicate that all agreements calling for hourly fees are improper. The court's decision seems to recognize that hourly agreements might be appropriate within the context of factors the WCAB can consider.

The problem with the court's opinion? In Vierra the court says that "once the services are rendered" the WCAB may "approve, reduce or increase the fees provided for in the agreement." Clearly any attorney rendering services does so at his own risk.

If Vierra's attorney had unsuccessfully fought the petition to reopen, would the WCAB have approved the hourly fee agreement? Probably not, and therein lies the problem. Without pre-approval of fee agreements, many workers in Vierra's situation will have trouble finding counsel. Under Labor Code 5710, Vierra would be entitled to have attorney fees paid for attendance at his own deposition. But if the attorney was required to depose doctors, write letters to doctors, attend conferences and trials, etc., the attorney would have no guaranteed source of compensation for the services.

The Vierra decision does not appear to automatically preclude WCAB approval of fees even if the results obtained were unsuccessful. But the decision hardly inspires confidence in the applicants' bar that such hourly fee agreements will be honored.

Stay tuned. You can subscribe to the blog by clicking on the RSS reader buttons at the lower right hand par on the right.

Julius Young
http://www.boxerlaw.com/practices.html
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At the bottom of this blog entry I've uploaded a pdf version of the Magana case (Bonifacio Magana vs. Essey International Inc and Wausau Insurance)that was just recently decided.

A decision by a 3-member panel of the statewide California Workers' Compensation Appeals Board, Magana appears to decide some important issues regarding how and when attorneys can use vocational or labor market experts to rebut the current Permanent Disability Rating Schedule.
(CAUTION: Magana is the opinion of 3 WCAB commissioners only, and does not necessarily represent a majority of the current WCAB. Moreover, this decision is subject to
appeals and therefore is not necessarily the last word on the issues decided.)

What were the facts in Magana and why is it important?

In Magana, the workers' compensation trial judge ruled that the claimant had a 12% disability, relying on the impairment rating under the AMA guidelines as adjusted by the current Permanent Disability Rating Schedule ("the PDRS"). (Note: The current PDRS itself is under attack as being inadequate and one San Francisco judge has ruled in the Boughner case that the PDRS is arbitrary, capricious and invalid; but that decision is on appeal to the statewide WCAB). Although the en banc decision of the statewide WCAB in the Costa case was to allow vocational/labor market testimony to rebut the PDRS (a decision which is also under appeal), the trial judge in Magana refused to follow labor market testimony that challenged the schedule.

Two labor market experts testified at Mr. Magana's hearing. The defense expert apparently testified that Magana would not sustain future wage loss. A vocational expert hired by Magana's lawyer testified that Magana had a 27% diminished future earning capacity (DFEC)loss.But the trial judge awarded a 12% permanent disability rating, not 27%. Magana appealed.

The WCAB panel decision is a big disappointment to injured workers and their advocates. The WCAB panel takes the position that it is not proper for the WCAB to award a rating solely on DFEC testimony. Rather, the Magana panel appears to indicate that the judge must start with an AMA impairment rating and then use the PDRS to generate a disability rating. By this analysis, it is the
PDRS which is subject to rebuttal testimony.

If you're not a lawyer or industry veteran, it is confusing. But try to stay with me here.

Under the facts of the Magana case, the diminished future earning capacity of Mr. Magana was somewhere between 0% (per the defense expert) to 27% (per the applicant expert). The panel of commissioners refused to overturn the judge's findings of 12% PD, noting that 12% was within the range of the DFEC estimates. The panel concluded that "..the PD rating herein, which is based upon the DFEC modifier in the 2005 PDRS, essentially is in accord with the range of expert evidence on DFEC and as such is inherently reasonable and probable."

The WCAB panel appeared troubled that the rebuttal testimony of the applicant's vocational expert was presented before the workers' comp judge issued a recommended rating.

It's not clear if the Magana panel is indicative of a consensus on how DFEC testimony will be allowed. But if DFEC testimony is allowable only AFTER a rating is issued by the WCAB, countless cases will be forced to go to trial, further administratively burdening the creaky WCAB judicial system.

In Magana it appears that it was a no brainer to all the parties what the rating would be under the AMA/PDRS. It was 12%.Under that circumstance, why the big fuss about hearing the DFEC testimony at the time of trial? Would it have made a difference if the parties had stipulated at a pretrial conference that the rating would be 12% unless modified by DFEC testimony?

Does the WCAB really want 2 trials? One on the underlying AMA rating/PDRS and then a separate trial on DFEC?

There's a lot to sort out here, and I look forward to other commentators weighing in.

I'll be uploading the decision itself for you to read by clicking here: The Magana Case and DFEC

Stay tuned.

Julius Young
www.boxerlaw.com
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One of the most famous plays of the "modern" theater is Samuel Beckett's "Waiting for Godot". On a bare stage, two quirky characters hang around a sickly tree, bantering for hours about an individual named Godot. They wait for him, and he never comes, yet the vigil continues. A bizarre master and slave enter and exit, but nothing much happens. The play is perhaps a metaphor for the anxiety and search for meaning in many lives.

Like Estragon and Vladimir who wait for Godot, many of us in workers' comp have been waiting for Chang. Unlike Godot, Chang has now appeared.

What's this all about?

In that seething cauldron we call California workers' comp, one bright spot over the past few years was the decision of a San Francisco workers' comp judge that all pre 1/1/05 cases should be compensated under the old, pre-AMA rating schedule.

That ruling, in a case called Aldi decided by San Francisco Workers' Compensation Judge David Hettick, did not fly with the statewide WCAB, which overturned Aldi.The WCAB interpreted the 2004 Schwarzenegger comp reform to require a worker to show a report establishing the existence of permanent disability before 1/1/05 in order to be grandfathered in under the old schedule. At the end of this post I'll include links to a few earlier posts I did on this subject.

Statewide studies by UC Berkeley and UC Davis researchers have shown a drop off of over 50% in awards for permanent disability under the new schedule adopted by the Schwarzenegger administration.

The issue in the Chang case was similar to the Aldi case. Would the 3rd District Court of Appeal in Sacramento adopt the Aldi analysis, thereby sparing all workers hurt before 1/1/05 from the new schedule chopping block?

No way.

You can read Chang for yourself in .pdf format by clicking here:
http://www.courtinfo.ca.gov/opinions/do ... 053854.PDF

It's time to bury Aldi. The 3rd District Court of Appeal has adopted the same view as many of the other California Appellate Courts. Workers who weren't permanent and stationary before 1/1/05 are to be rated under the new schedule.

This decision isn't a big surprise, but it's a big hit for injured workers. And it locks in further huge profits for insurers, who are paying out less than 50% of workers' comp premium collected.

To see an earlier post on this topic ("Costco Gets What It Wanted"), click here:
http://www.workerscompzone.com/index.ph ... 4f787d6811

And to see what's really going on in the system, click here:
http://www.workerscompzone.com/index.ph ... 4f787d6811

Stay tuned.

Julius Young
www.boxerlaw.com
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Ever experienced a scirocco?

Me neither til yesterday.

Workerscompzone is visiting Sicily. Yesterday, sudden fierce, blindingly hot winds swept through the piazza here in Taormina, knocking over vendor's carts, sending locals and tourists scurrying alike. These winds-also called tromba d'aria by a local-are North African desert winds that occasionally sweep through the islands of the Mediterranean. This region, whose history has ping-ponged between Phoenicians, Greeks, Arabs, and Romans, is accustomed to these occasional winds.

But it was with interest that I saw the scirocco that hit California workers' comp in the past few days. A California court ruled that the ACOEM guidelines (now the official standard for medical treatment in California workers' comp) are not applicable to chronic pain cases.

The case is James Laing vs. Kaiser Engineers. Mr. Laing was injured in 1987 and the issues in the case dealt with treatment issues raised many years later (note: part of the case deals with the procedures for second opinions in spine surgery cases, something I'll discuss another time).

The decision is "unpublished" for the moment, meaning that it may be of limited value as precedent in court. But the decision echoes several panel decisions from the WCAB several years ago which questioned the applicability of ACOEM to treatment of chronic pain, rather than acute (recent) injuries.

This will increase the pressure on the DWC to have viable chronic pain guidelines. Til then, injured workers may want to note this case.

Stay tuned.

Julius Young
www.boxerlaw.com