Proving Permanent Disability: The Applicant’s Attorney’s Burden

ARJUNA FARNSWORTH, ESQ.

Oakland, California

Receipt of a comprehensive report from an agreed medical examiner or panel qualified medical evaluator frequently signals the end of a long (sometimes seemingly endless) course of discovery, drawing the parties near to settlement discussions. Opposing parties will argue the nuances of the medical-legal expert’s opinion and resolve to some mutually disagreeable compromise. Each party thereafter holds its nose and recommends this compromise to its client. Welcome to the world of workers’ compensation!

Occasionally the medical evidence does not fully capture the true impact of an applicant’s loss in terms of labor market access, long-term earning capacity, or ability to perform activities of daily living. In such cases the applicant’s attorney must consider whether an attempt to rebut the scheduled rating is warranted. Factors that raise this question include a finding by the primary treating physician and/or medical-legal evaluator that the injured worker is precluded from the workers’ usual and customary occupation. Additionally, an award of social security disability indemnity raises questions about the applicant’s ability to compete in the open labor market. It is also important to carefully examine the medical evidence to see whether the industrial injury has a disproportional impact on the worker’s activities of daily living and/or work capacity as compared to the scheduled AMA Guides rating.