Substantial Medical Evidence

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In Blackledge v Bank of America (2010) 75 CCC 613, the court addressed what constitutes substantial medical evidence of whole person impairment under the AMA Guides and Almarez/Guzman II
Under the AMA Guides, a physician performs an evaluation to determine the WPI for the injured employee’s medical condition(s) expressed as a percentage. (AMA Guides, Section 2.1, at p. 18). The impairment evaluation includes a discussion of the employee’s history and symptoms, the results of the physician’s examination, the results of various tests and diagnostic procedures, the diagnosis, the anticipated clinical course, the need for further treatment, and the residual functional capacity and ability to perform activities of daily living. After considering all of these factors, the physician compares the medical findings for each condition with the impairment criteria listed within the Guides and then calculates the appropriate impairment ratings for the conditions. The physicians report should include a summary list of the impairments and impairment ratings by percentage, together with a calculation of the final WPI, and a statement of the rationale underlying the WPI opinion.
The opinion of a single physician may establish an injured employee’s WPI, provided that the opinion constitutes substantial evidence. Place v. WCAB (1970), 35 CCC 525, 529-530. Among other things, to constitute substantial evidence regarding WPI a physicians opinion must comport with the AMA Guides, including as applied and interpreted in published appellate opinions and en banc decisions of the Appeals Board. Hegglin v WCAB (1971) 36 CCC 93. Medical report and opinions are not substantial evidence … if they are based on incorrect legal theories. Zemke v WCAB (1968) 33 CCC 358, 360. An expert’s opinion which …assumes an incorrect legal theory cannot constitute substantial evidence.
Also, a physician’s opinion regarding WPI must set forth the physician’s reasoning, not merely his or her conclusions. Granado v. WCAB (1970) 33 CCC 647, 653
A physician’s mere conclusion not sufficient. Zemke p, 363. People v Bassett (1968) 70 Cal Rptr 193. The chief value of an expert’s testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based.

Diminished Future Earning Capacity

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To rebut a PDRS rating by showing a higher DFEC the employee must establish that his diminished future earnings are directly attributable to the employee’s work related injury, and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education. Ogilvie III 197 Cal. App. 4th p. 1275.

100% Total Permanent Disability

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The Limited v WCAB (2012) 77 CCC 1003
It has long been recognized that an injured worker may be found to be 100% permanently disabled when the effects of the industrial injury cause a loss of future earning capacity because the employee is not amendable to vocational rehabilitation and is unable to compete in the open competitive labor market. LeBoeuf v WCAB. As the court wrote in LeBoeuf, permanent disability is the irreversible residual of a work related injury that causes impairment in earning capacity, impairment in the normal use of a member or a handicap in the open labor market. An injured worker may be totally permanently disabled even if he or she may be able to perform some limited work in a sheltered and protected work environment. Sparteck Plastics v WCAB (1998) 64 CCC 124 Garden Grove Unified School Dist. v WCAB (2010) 75 CCC 521. (page 1006).
In this case the court found that it makes no difference that the applicant might be able to perform limited work in a sheltered environment because such work is not generally available in the open labor market.


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A deposition is a person’s testimony under oath. It is subject to the penalty of perjury. That means that the deponent must testify truthfully as to any and all issues which are material to the lawsuit or litigation. In a worker’s comp case it is absolutely necessary to disclose any and all prior injury claims or accidents.
Since the deposition is a discovery tool, the defendants have the right to inquire as to not only relevant facts, but also any facts which might lead to the discovery of relevant information. A deponent should never volunteer information at a deposition, but only answer a question that is posed. Never assume that the friendly attorney asking you questions is your friend, or has sympathy toward your case. Honey just works better than vinegar. Watch out. . .

Structured Settlement Agreements

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RE: Structured Settlement Agreements

It is possible to settle a worker’s comp case pursuant to a structured settlement agreement. It is frequently used when the applicant has suffered substantial permanent disability. The settlement often consists of a lump sum payment coupled with a life pension, paid weekly or monthly. Usually, medicare requires that there be a medical set aside agreement. The amount to be set aside for medicare is established by medicare after they have reviewed all medical reports pertaining to applicants injuries. Normally the applicant opens a checking account where the medicare funds are deposited and used only to pay for applicant’s future medical treatment for his or her industrial injuries. The value of the structure is based on the present value of applicant’s life payments for permanent disability and future medical care. Usually the applicant’s attorney will employ a structured settlement expert to help evaluate the case and to work with the defendant’s structured settlement broker.Structured settlements can be of great value to the injured worker when they are fairly valued and desirable to the applicant.