100 Percent Trouble: The Expensive Future of PD

Got a case reserved for 60, 70, or 80 percent, but certain it won't hit 100% given the conservative nature of the AMA Guides and the 2005 PDRS? Think again! Review those reserves and prepare to go to battle ... without reliance on an AME and/or AVE! 1 Apologies to Bob Dylan 2 "4662. Any of the following permanent disabilities shall be conclusively presumed to be total in character: (a) Loss of both eyes or the sight thereof. (b) Loss of both hands or the use thereof. (c) An injury resulting in a practically total paralysis. (d) An injury to the brain resulting in incurable mental incapacity or insanity. In all other cases, permanent total disability shall be determined in accordance with the fact." 3 LeBoeuf v. WCAB (1983) 34 Cal. 3d 234 [193 Cal.Rptr. 547; 666 P.2d 989] held that where an injured worker is found to be less than totally disabled and the Bureau of Rehabilitation (Bureau) subsequently finds the worker not qualified for rehabilitation benefits, this finding constitutes "good cause" to reopen the permanent disability proceeding. 4 Even though the California Legislature largely rewrote LC §4660 and changed the very language of that statute that LeBoeuf relied on, nothing has changed!?!? 5 For further details on why the defense should avoid AMEs, see "The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable" at http://www.bradfordbarthel.com/blog/V5N4/One-1.htm. 6 I simply have no good answer for this rhetorical question! 7 Some of these arguments including challenging the so-called expert's expertise (See Costa II) and citing LC 4621(a). 8 4664(a) provides: "The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." 9 See Cal. Rules of Ct., rule 8.528(b)(3) and 8.1115(a).

Don Barthel

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Don Barthel

Donald Barthel is a founding partner of Bradford & Barthel, LLP, an industry leader in the aggressive defense of Workers' Compensation, Subrogation, and Employment, and Labor matters. His entire legal career has been dedicated to the defense of employers' rights in the arenas of labor law, employment law, and workers' compensation.

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