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  1. #21
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    Default Re: Can an AME Be Rebutted

    Should AME reports refer to Almerez Guzman (sp?) when determining future rating?
    Although the en banc is still valid, hasn't been suspended, the appeal is in process...no ruling yet.
    It would depend on the factors surrounding the claim whether or not this is relative to the final rating.

    When are MRI's considered too old? A friend of mine just received a PD rating from the AME using MRI's from a year or more ago. My AME requested new MRI's for anything that was over six months old.
    MRI films a year old would be considered 'stale'. It's the Radiologits narrative report that is relied upon more so than the actual films. You'd be suprised how many 'doctors' don't rely on their own interpretation of the films. It's not their expertise.
    At any rate, it would be the AME's determination on additional MRI's if necessary...not code/statute.

    If the AME, being a 'medical/legal' evaluator, finds additional testing/MIR is necessary to form a valid opinion, based on EBM, then all that is necessary is a referral/Rx for the MRI to take place. The costs are to the ER/IC M/L account, not to 'treatment'. And don't require prior authorization.

  2. #22
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    Default Re: Can an AME Be Rebutted

    Thank you BvIA,

    Your responses are always appretiated.

  3. #23
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    Default Re: Can an AME Be Rebutted

    I have tried to read Almarez/Guzman... It is 54 pages long... In lawyer talk I will try to re-read it, and make some sense out of it...

    For those of you who "know" the story here's more...Please explain if you can..

    If the "trier of fact" confirms that this is a bona fide modified duty offer, then the permanent imparement rating described above pursuant to an Almaraz/Guzman interpretntion is not applicable in this case. HELP
    Never doubt that a small group of thoughtful, committed citizens can change the world...indeed...its the only thing that ever has - Author Margaret Mead

  4. #24
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    Default Re: Can an AME Be Rebutted

    InjuredGypsy: I don't know it this answers your question or not but this is what I have found; it may if nothing else help to explain the Almaraz/Guzman thing and ratings..... RW....

    Section 1.9, chapter 1, the AMA Guide states in full:
    “More complicated are the cases in which the physician is requested to make a broad judgment regarding and individual’s ability to return to any job in his or her field. A decision of this scope usually requires input from medical and non-medical experts, such as vocational specialists, and the evaluation of both stable and changing factors, such as the person’s education, skills, and motivation, the state of the job market, and local economic considerations.”
    Within the context of the AMA, a non-medical expert such as a vocational specialist performing a DFEC evaluation that considers age, occupation and diminished future earning capacity would appear to be the only accurate method that would allow compliance of LC 4660 (a) “In determine[ing] the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee's diminished future earning capacity.” The schedule cannot achieve this goal if a 0%WPI cannot be adjusted as LC 4660 (a) requires.


    Finally, if you are saddled with a 0% WPI you may want to consider an Almaraz/Guzman evaluation. [It appears that Almaraz/Guzman comes into play when an IW has a 0% WPI]

    The Almaraz/Guzman Board stated in relevant part that:
    In sum, we conclude that the AMA Guides portion of the 2005 Schedule may be rebutted by a showing that an impairment based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the injured employee’s permanent disability. (Page 52)
    Finally, our conclusion is consistent with the language of the Supreme Court’s recent decision in Brodie, in which it describes permanent disability as causing “impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market” and in which it states that “permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity.” (Brodie, 40 Cal.4th at p. 1320 [72 Cal.Comp.Cases at p. 571] (Page 52 Bold added)
    Nevertheless, just because there is no easy solution does not mean that when a rating called for by the AMA Guides does not provide a fair and accurate measure of the injured employee’s impairment and does not truly and accurately reflect his or her loss, we may turn a blind eye to this fact and deny the employee his or her just compensation. (Page 52 Bold added)
    We do not suggest that this approach to evaluating impairment is perfect. The reality is that, at present, there is no simple method by which evidence regarding an employee’s medical condition can be combined with other evidence to calculate the percentage to which an injured employee is occupationally impaired. As observed by the AMA Guides:
    “Unfortunately, there is no validated formula that assigns accurate weights to determine how a medical condition can be combined with other factors … to calculate the effect of the medical impairment on future employment. Therefore, each commissioner or hearing official bases a decision on the assessment of the available medical and nonmedical information. The Guides may help resolve such a situation, but it cannot provide complete and definitive answers. Each administrative or legal system that bases disability ratings on permanent impairment [must] define[] its own process of converting impairment ratings into a disability rating …” (Page 51 Bold added)

    According to the ALMARAZ/GUZMANBoard, there are 3 manners in which a physician may depart from the AMA Guides:
    1. “….a physician may depart from the specific recommendations of the AMA Guides and draw analogies to the Guides’ other chapters, tables, or methods of assessing impairment.” (Page 46)
    2. “….in evaluating impairment in a manner outside of or in addition to that prescribed by the AMA Guides, the physician may consider other generally accepted medical literature or criteria.” (Page 47)
    3. “….in reaching an impairment opinion that is not based on a strict application of the AMA Guides, a physician may consider a wide variety of medical and non-medical information.” (Page 47)

    The third option suggests in pertinent part, that:
    ….when a physician believes that an impairment rating based on the AMA Guides would not provide a fair and accurate measure of the injured employee’s degree of impairment, then the physician may assess how the permanent effects of the employee’s injury impair his or her ability to perform work activities, as well as assess the medical consequences of performing certain work activities….…see also Williamson (Ariz. 1988)…(“Where the ALJ finds that the Guides do not provide a fair, accurate measure of the degree of impairment, he or she must turn to other factors. Any relevant factors … may be considered. Effect on job performance is one such factor. [] … If an injury has resulted in a functional impairment not adequately reflected by clinical measurement under the AMA Guides, then an ALJ must consider impact on job performance.”)
    …..In addition, a physician may take into account pertinent diagnostic studies, such as functional capacity and rehabilitation evaluations……Finally, if the employee has been evaluated by a vocational rehabilitation expert, the physician may review and consider the vocational specialist’s opinion regarding what jobs the employee might be able to perform and what effect the injury may have on his or her ability to earn. (Page 47-48 Bold added)

    two recent en banc decisions had these comments:

    ALMARAZ/GUZMANBoard:
    Once the WCAB has made its percentage impairment determination, then that percentage impairment figure is plugged into the rating formula of the 2005 Schedule, in place of the AMA Guides percentage impairment, but otherwise the calculation of the ultimate permanent disability rating remains the same. That is, the impairment percentage is adjusted by the appropriate DFEC adjustment factor and then is adjusted for occupation and age. (Page 51 Bold added)
    Of course, it is the WCAB, and not any particular physician, which is the ultimate trier-of-fact..........(Serafin, 33 Cal.2d at p. 94 [13 Cal.Comp.Cases at p. 270] (the WCAB “may make a determination within the range of the evidence as to the degree of disability,” it need “not adopt exactly the view of any expert witness,” and it “may accept the evidence of any one expert or choose a figure between them based on all of the evidence”); U.S. Auto Stores v. Workers Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469, 474-475 [36 Cal.Comp.Cases 173, 176] (a “decision is supported by substantial evidence if the degree of disability found by the [WCAB] is within the range of evidence in the record. It is not necessary that there be evidence of the exact degree of disability.” (Court’s italics). (Page 49-50 Bold added)

    Ogilvie Board:
    The foregoing examples, however, are merely illustrative of some instances where it might be inappropriate to use the method set out above. These examples are neither all-inclusive nor absolute. The question of whether the DFEC rebuttal method discussed above should or should not be used in any particular case must be determined on a case-by-case basis. Moreover, when the foregoing method is not appropriate, it initially will be up to the assigned WCJ to decide what alternative method might be used. (Page 35 Bold added)



    Last edited by roofinfool; 06-09-2009 at 07:46 PM.

  5. #25
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    May 2007
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    Calif
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    Default Re: Can an AME Be Rebutted

    Regarding an offer of modified/alternative employment.....it is my understanding that large employers may offer alternative positions once the IW MMIs/P&S however as long as the offer is not less than 15% of your pre-injury wages, the IW MUST accept the offer.

    For those injured in 2005 or later a refusal of modified/alternative work again provided the wage loss is still not less than 15% of their pre-injury wage, could have their PD award reduced by 15% if you fail to accept or reject the offer. Now if the employer does not offer then they pay a 15% increase.

    The DWC requires notice of Offer of Modified or Alternative Work in form AD-10133.53. here is a link to the form that is suppossed to be given to an IW;

    http://http://www.dir.ca.gov/dwc/DWC...133.53Form.pdf

    hope this helps .......RW....
    Last edited by roofinfool; 06-09-2009 at 08:13 PM.

  6. #26
    Join Date
    Jul 2008
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    ca
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    863

    Default Re: Can an AME Be Rebutted

    RW,

    Thank You... Yes it does help.. But I will have to read it a couple times..

    There is just so much that needs to be absorbed, even with an AA!!!

    Thank you everybody, Iam sure I will have more questions
    Never doubt that a small group of thoughtful, committed citizens can change the world...indeed...its the only thing that ever has - Author Margaret Mead

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