Labor Code Inclusion Is a Positive Aspect of Senate Bill 863
Dating back to 2004, changes in the Workers’ Compensation laws altered the procedure for determining permanent disability, commonly known as the “settlement” part of a Workers’ Compensation case. One of the key changes in the law was to adopt and require that doctors use a book entitled the Guides to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association, commonly referred to as the “AMA Guides.” There are charts in the AMA Guides that determine an individual’s impairment based on the nature of the injury, the nature of the medical treatment, the impact on a person’s activities of daily living, and objective medical testing. In the early years the applicability of the AMA Guides resulted in much lower settlements for injured workers.
Faced with these sometimes harsh results, attorney advocates for injured workers questioned the doctors’ strict application of the AMA Guides and went to court in an effort to prove an alternative analysis was necessary. The attorneys argued that impairment ratings based upon a strict interpretation of the AMA Guides, in some cases, did not result in an accurate permanent impairment rating and settlement. Ultimately, after many legal battles, two cases, the Almaraz and the Guzman cases, led to an acceptable, alternative method to determine an accurate permanent impairment. With skillful questioning by an attorney, based upon the principles as set out in these cases and the underlying principles of the AMA Guides, permanent impairments in certain circumstances have been significantly increased.
One positive aspect in the recently enacted Senate Bill (SB) 863, the 2012 Workers’ Compensation reform bill, is that this alternative method of using the AMA Guides has now been written into the law in Labor Code Section 4660.1(h). This Labor Code section specifically indicates that it is not the intent of the legislature or this new law to overrule the conclusion and new method detailed in the Guzman case. The inclusion of this case into the law was a significant victory for injured workers.
When and if this new method will apply to an individual’s injury case is complex, requires a thorough analysis, and, unfortunately, often still requires questioning of doctors who do not seem to accept or understand these concepts. Thus, with any significant injury that affects one’s ability to function, it is more important than ever to consult with a skilled attorney.
The Workers’ Compensation attorneys at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK) have been and will continue to be on the frontlines of legislative changes that affect injured workers in California. If you would like to speak with a GEK attorney about your legal options, please call 213-739-7000 or click here.