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Consider this hypothetical: I suffered an injury at work to my neck and right shoulder. I went to all of my medical appointments and saw a panel qualified medical examiner. The permanent disability on my case is 39%. I was wondering if it could possibly be higher than that. I wish to go back to work but do not feel that I actually could. I am scared that I may not be able to go back to work and will not be able to earn a living to pay expenses. If I hire an attorney, could the permanent disability increase?
Perhaps. There are some guidelines in workers’ compensation law that may allow an increase in permanent disability. One of them is the Almaraz/Guzman decision that allows for rebuttal of the standard rating. Keep in mind that it not automatic or easy. This requires several elements to be in place that will allow the standard permanent disability rating to be rebutted. In scenario above, 39% would be the standard rating. For the most part, permanent disability ratings are based on the American Medical Association Guides 5th edition, or simply the AMA Guides. From this book the doctor will make a whole person impairment finding. This is one of several other factors that determines overall permanent disability.
One consideration is whether the standard whole person impairment finding is an accurate reflection of the applicant’s overall disability. This based on the medical evaluator's clinical judgment and expertise. In this example the medical evaluator would be the panel qualified examiner. The doctor must make this determination based on objective factors and findings. This needs to be clearly referenced and explained in the report. Theoretically, the doctor is allowed to refer to any table or chapter in the AMA Guides to determine the impairment that most accurately reflects the disability. For example, one major area often cited is the injury’s impact on the injured worker’s daily activities of living.
The attorney could present this to the agreed medical examiner or panel qualified medical examiner and it may change the standard rating. Oftentimes, the medical evaluator is already aware of this and will already include an Almaraz/Guzman analysis.
If you have questions about treatment for your workers' compensation injury and want to talk to an attorney in Fresno, please call 559-408-7436 or fill out the form to the right.