California Court of Appeals, Sixth Appellate District
California Court of Appeals, Sixth Appellate District

Just when you thought things couldn’t get any crazier in workers’ compensation than Ogilvie, Almaraz/Guzman, Benson, and XyzzxSJO2.  Yesterday I found out that on April 7, 2009 the case of Smith v. WCAB (California Youth Authority) is on calendar for oral argument.  As with Almaraz/Guzman, Smith v. WCAB dealt with similar legal issues across two particular workers’ compensation cases.  In case you missed it, here’s the court of appeal decision:

Smith involved an informal denial of medical treatment without a formal petition to terminate medical care under L.C. 4607, after an award of permanent disability. Eight years after Smith’s  award, SCIF refused to authorize epidural injections.  Smith’s attorney sought utilization review, Smith was reexamined by the AME who said the injections were necessary to relieve from the effects of the industrial injury.  Although SCIF then authorized the injections without the need for a hearing, Smith’s attorney sought fees under L.C. 4607.

The WCJ denied Smith’s attorney’s petition for fess since there was no formal petition to terminated medical care.  The WCAB denied reconsideration on the grounds that SCIF’s was not denying all medical treatment.

Amar is substantially similar to Smith, except that in Amar the workers’ compensation judge took the extra step of opining that SCIF’s denial of medical treatment was made in good faith, not unreasonable, and not improper.

However, the 2nd Appellate Court reversed the WCAB in Smith and Amar, stating in relevant part:

“We see no difference when a carrier informally denies some of the treatment that is a necessary part of medical care previously awarded. This is tantamount to a petition to deny medical care even though the carrier continues to provide treatment for some of applicant’s medical care.”

“Insurance carriers who fail to provide previously awarded medical care may not avoid attorney fees to successful applicants’ attorneys through the expedient of an informal denial, even when they do so in good faith.”

I would love to watch the oral argument on this case – but Los Angeles is a bit of a hike for me.  ((I last watched oral argument on the Mt. Diablo Unified School District v. WCAB (Rollick) case back on 8/5/2008.  It was particularly interesting for me since I was familiar with the applicant attorney, defense attorney, and facts of that case.  If nothing else, its always fun to watch judges get snarky.))  I am very very interested to see how this case shakes out.

Glasses, online
Glasses, online!

Is pupillary distance is important?

Does pupillary distance matter?

Yes! Pupillary distance is the distance, in millimeters, between the center of your eyes.  When your eyeglass professional is building your glasses, they will need to make sure the “sweet spot” for each lens is directly in front of each eye.  They do this using your pupillary distance.

Its possible to have a different pupillary distance for each eye if your eyes are not the same exact distance from the center of your face.  Don’t feel bad – your mom still loves you!

When you go into a brick and mortar eyeglass store, they measure your pupillary distance for you.  If you’re buying glasses online, you can either measure your pupillary distance yourself or you can ask your eye doctor to measure it for you.  If you’re buying glasses online, don’t cheap out – get your eye doctor to measure your pupillary distance for you.  You can do it yourself – but why leave something this important up to chance?  If you insist on doing it yourself, you just need a mirror and a metric ruler and measure the distance between the center of your two pupils.

Now that I’ve answered the burning question about pupillary distance:

Glasses, online
Glasses, online!

Last week I posted a Goggles4U.com review.  ((Photo courtesy of Morningstar Lee)) My review was favorable despite having received glasses that didn’t really work for me.  It just so happens, according to my eye doctor, that some people are more sensitive to the “Base Curvature.”  I happen to be one of those people and there’s no way either I or Goggles4U could have known that.  The bottom line is that I received glasses with the exact prescription I specified- you can’t ask more than that.

After trying out this pair of glasses for a week I notified Goggles4U customer service that I was too sensitive to the “Base Curvature.”  They responded immediately and gave me a code to order a new pair.  I placed the order on 2/27/2009, sent them an e-mail specifying a comfortable range for the Base Curvature.  The new glasses arrived on 3/7/2009.

These new glasses, with transition/polychromatic lenses, are great. I haven’t had any problems with them at all.  I will still take them back to my eye doctor to confirm, because I think any review would be incomplete without an independent confirmation from a medical professional.

In end sum, I would recommend Goggles4U without reservation.  Check out my prior review (now updated!) for the complete review and a Goggles4U coupon.

Get your head out of the sand!
Get your head out of the sand!

UPDATE 9/3/2009:  Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

There are numerous workers’ compensation professionals who are incredibly unhappy with Ogilvie and Almaraz/Guzman.  Vocational experts are unhappy with Ogilvie, and somewhat hopeful with Almaraz/Guzman.  Impairment rating specialists are not happy with Ogilvie or Almaraz/Guzman.  These people may be unhappy with these new cases, but at least they’re starting to adapt.

As Julius Young of WorkCompZone.com just reported, some people are dealing with Almaraz/Guzman by putting on “webinars.”  Phil Walker and Christopher Brigham have each announced “webinars.”  According to Walker’s promotional e-mail, he charges $2,000.00 to appear for a one day seminar – and now he’s giving it away for free.

People will try to convince you that Almaraz/Guzman is not the law or “just” a WCAB decision.  Do not believe these people.  Ogilvie and Almaraz/Guzman are both en banc cases.

En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and workers’
compensation judges. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109, 120, fn. 5]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6 [67 Cal.Comp.Cases 236, 239, fn. 6]; see also Gov. Code, § 11425.60(b).)

Ogilvie and Almaraz/Guzman are binding precedent on judges and the WCAB itself.  Don’t believe the hype and don’t stick your head in the sand.  ((Photo courtesy of blakeimeson)) If you argue it is not the law or not binding precedent, you will lose.  Yes, these cases may be appealed and may even be overturned.

I think it likely they will be appealled and highly unlikely they will be overturned.

XYZZXSJO2 - The motion picture!
XYZZXSJO2 - The sequel!

Last week I posted about a recent case from the San Jose WCAB that indicated a life pension SAWW ((SAWW means State Average Weekly Wage)) increase is applied on the first January 1 after the date of injury.  You can find a download of the XYZZXSJO2 case here.

I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access.  ((If you have already helped me out as a beta tester, you already have access to this calculator.))

Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator.  The actuarial math involved in performing that calculation is … intense.

As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase.  Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used.  I was pretty disappointed to find this out.

No matter!  Help beta test the new calculator by dropping me a line.  After you’ve given it a whirl, let me know what you think.