| |
| |
|
| |
A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
|
 |
Articles emphasizing practical knowledge you
can't find in practice guides
|
|
Profiles of people who changed workers’
compensation law.
|
|
|
|
|
|
• Warren Schneider
• Marjory Harris
|
|
|
|
|
 |
Applicant’s attorney
Thomas F. Martin has been presenting seminars and workshops around California
on how to use vocational analysis to
prove diminished future earning capacity (DFEC).
His approach complies with the Labor Code and addresses the deficiencies of the
new Permanent
Disability Rating Schedule’s FEC modifier. In this
interview with Marjory Harris, Tom Martin explains
the legal underpinnings and process for complying
with Labor Code §4660, as amended by SB 899. |
|
 |
HARRIS: Everyone from judges to claims adjusters
seems to be talking about using vocational experts
to prove the “new” permanent disability. Why?
MARTIN: SB 899 changed the
measurement of permanent disability from “the ability of such injured
employee to compete in an open labor market” to one based on “an
employee’s diminished future earning capacity.” (L.C.4660(a)
The new L.C. 4660(b)(1) requires that the American Medical Association (AMA)
Guides to the Evaluation
of Permanent Impairment (5th Edition) “descriptions”
shall be “incorporated” into the definition of what a
physical injury is, which is not to say they are the
“exclusive method” of measurement, despite the
“spin” of some. There is simply no way to avoid the clear mandate
of L.C. 4660(b)(2) which requires that
diminished earning capacity “shall be a numeric
formula based on empirical data and findings that aggregate the average
percentage of long-term loss
of income resulting from each type of injury for
similarly situated employees.”
Any methodology that does not do this is, in a word, invalid.
|
4660 Pre-SB 899:
(a) In determining 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 age at the time of such injury, consideration
being given to the diminished ability of such injured employee to compete in an
open labor market.
(b) The administrative director may prepare, adopt, and from time
to time amend, a schedule for the determination of the percentage of permanent
disabilities in accordance with this section. Such schedule shall be
available for public inspection, inspection, and without formal introduction in
evidence shall be prima facie evidence of the percentage of permanent
disability to be attributed to each injury covered by the schedule. |
|
|
Up till now, the workers’ compensation
community
has been preoccupied with the procedural
retroactivity of SB 899. Now that doctors are starting
to include “whole person impairments (WPI)” in their
reporting, we are seeing how the new PDRS utterly
failed to comply with the legislative mandates of
SB 899/L.C. 4660. The WPI percentages and the adjustment for
diminished future earning capacity (FEC) result in ratings that
do not in any way
approximate an employee's diminished future
earning capacity.
This failure to incorporate the RAND data into the new PDRS
has burdened the applicants’ attorneys with the task of
establishing the “long-term loss of income” the
applicant is entitled to under L.C. 4660.
HARRIS: There has been a lot of talk about the
“RAND Study” [Evaluation of California's
Permanent Disability Rating Schedule, Interim
Report (December 2003), prepared by the RAND
Institute for Civil Justice] and whether the Administrative Director (AD)
complied with the legislative mandate to base the FEC adjustment on
empirical data and findings from this study, which,
unlike the AMA Guides, is available to the public
online (click here). What do you think?
MARTIN: A growing
number of judges, attorneys and adjusters are now realizing
the significance of this study. Rand made two major findings
regarding the equity and adequacy of the “old” Schedule.
First, The “old” schedule did not adequately compensate
injured workers for permanent
disability. “Adequacy” is defined by RAND as
66-2/3% reimbursement of the injured worker’s long
term loss of income. RAND found that the “old”
schedule only reimbursed 37.2%.
Second, the “old” schedule was not equitable.
RAND foundthat injured workers with identical long term loss
of income would get different PD awards
depending on the body part injured ( e.g., knee vs.
shoulder) This is not surprising given the fact that the
“old” schedule was based on a 19th century
Prussian compensation system for injured soldiers.
Yes, you heard me right. What RAND suggested in
its study is that to equalize this disparity, a numerical
multiplier should be applied to each body part in the
“old” schedule. For example, the standard rating
for
a back injury should be multiplied by 1.27 to bring it
in line with the rest of the body parts listed in the
“old”
schedule.
So, the reason understanding the RAND Study is critical is because
the AD adopted the “equity” adjustments to the “old”
schedule, and called them “Future Earnings Capacity”
adjustments, when they had absolutely nothing to do with FEC.
That is why when someone says they intend to rely on the new
schedule as the measure of PD, I know that they have not carefully
read L.C. 4660 or the RAND Study.
For those of your readers who want to really
appreciate the fine points of why the new schedule
utterly fails as evidence of the “new” PD, they
should
read the
Petition for Writ of Mandate filed in the
Supreme Court by
VotersInjuredatWork.org,
et al. |
4660.
(a) In determining 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.
(b) (1) For purposes of this section, the "nature
of the physical injury or disfigurement" shall incorporate
the descriptions and measurements of physical impairments and the
corresponding percentages of impairments published in the
American Medical Association (AMA) Guides to the Evaluation
of Permanent Impairment (5th Edition).
(2) For purposes of this section,
an employee's diminished future earning capacity shall be a numeric formula
based on empirical data and findings that aggregate the average percentage of
long-term loss of income resulting from each type of injury for similarly
situated employees. The administrative director shall formulate the adjusted
rating schedule based on empirical data and findings from the Evaluation of
California's Permanent Disability Rating Schedule, Interim Report (December
2003), prepared by the RAND Institute for Civil Justice, and upon data from
additional empirical studies.
(c) The administrative director shall amend the schedule
for the determination of the percentage of permanent disability
in accordance with this section at least once every five
years.
This schedule shall be available for public inspection and, without formal
introduction in evidence, shall be prima facie evidence of the percentage of
permanent disability to be attributed to each injury covered by the schedule.
|
|
|
|
