Arguing for Increased Impairment: An Overview of Important Defense Insight into the Winter 2026 California Applicant’s Attorneys Association Convention
July 17, 2026
The California Applicant’s Attorneys Association Convention was held on January 29 through February 1, 2026, and as can be expected, the topic at the forefront of the convention was increasing applicant recoveries.
While some parts of the convention provided entertainment, including the first annual “CAAA’s Got Talent”, highlighting various individuals’ outside talents, many focused on new trends and legal arguments being put forth by applicant’s attorney’s and physicians statewide to increase permanent disability findings. Attendance at the convention provided the a brief sneak peek into what applicant’s attorneys may begin focusing on given the discussions and providing a way to prepare ahead of time for anticipated litigation based on the focus of the presentations.
GENERAL POINTS OF EMPHASIS CAAA 2026
Allostatic Load
One of the most intriguing and potentially impactful presentations was given by Dr. Martin Schlusselberg, who presented regarding the concept “allostatic load.” The concept has been around since 1993, and there is significant disagreement in the medical literature about how allostatic load is measured or calculated.
Dr. Schlusselberg defined “allostatic load” as cumulative mental stress that produces damage across different physiological systems. The presentation argued that so-called “allostatic overload” could contribute to the onset of many different diseases, including cardiovascular, metabolic and even immune diseases. The implication was that if an applicant has a diagnosis of a disease affecting one of these bodily systems, the applicant’s attorney should push the QME to find the condition was caused, aggravated, or contributed to industrially by “allostatic load.”
The doctor identified areas for rating in the AMA Guides, highlighting cardiovascular system, mental and behavioral disorders, nervous system, endocrine/metabolic system, musculoskeletal system, and pain. Further, Dr. Schlusselberg provided Applicant’s attorneys with a QME deposition sample regarding arguments for allostatic load, highlighting how to address and further argue for increased impairment in these instances. The doctor’s presentation provided applicant’s attorneys with the benefit of a clear framework to argue for increased impairment, even including proposed deposition questions for other QMEs.
The important takeaway from this presentation for the Defense is to be aware that Applicant’s attorneys may now be utilizing these arguments to increase impairment ratings despite a psychological injury not having been initially plead in the Application, and to be wary of amended Applications including new injury in the areas mentioned in the presentation. While the threshold for causation of these conditions may be a low hurdle, attacking the concept of allostatic load when it is suggested by either the opposing counsel or the QME will likely be more important for the Defense in the future.
Coaching Primary Treating Physicians to Write a Substantial Medical Report
Many applicant’s attorneys have found that the quickest way to a higher permanent disability rating is to obtain a “rebuttal report” from the applicant’s primary treating physician. Primary Treating Physician Permanent and Stationary Reports or “PR-4s” have been a staple of litigation in workers’ compensation for some time, but the applicant’s bar frequently runs into substantiality issues with the resulting reports, leading to the QME report winning the day at trial. CAAA further provided information on how to counsel primary treating doctors to write reports that constitute substantial medical and adhere to the requirements of 8 Cal. Code Regs. 10682. The presentation provided coaching focusing on increasing credibility, reporting that was based on a reasonable medical probability, and review of the whole medical record. The consequence here for Defendants is an increased likelihood of Permanent and Stationary reporting being offered as rebuttal evidence to QMEs and at trial, as well as Applicant’s attorneys electing to depose Primary Treating Physicians to bolster their reporting.
CASES EMPHASIZED AT CAAA 2026
Each year, CAAA provides a “case law update” where pertinent cases and recent developments are reviewed. While all the cases covered by CAAA this year could each support an entire article, the following cases highlight renewed focus by the applicant’s bar and warrant attention by the defense.
Pollard v. Lemstra Cattle Co., 2025 Cal. Wrk. Comp. PD LEXIS 219
In Pollard, the Board addressed the concept of properly served sub rosa. In this case, applicant was not deposed, and sub rosa videos were taken, served on applicant’s attorney, and sent to the QME in request for supplemental report. The applicant’s attorney objected to the videos being provided to the QME, prompting a trial on whether they could be sent. The trial judge found that defense was not permitted to send the surveillance to the QME. However, the WCAB disagreed. The Board reasoned that sub rosa can be provided to a QME or AME if it has been properly served. As such, Defendants may provide the QME or AME with properly served sub rosa, and defendant may withhold surveillance if applicant’s deposition has not been completed. Because the applicant’s deposition in this case had not taken place, and because the defendant served the surveillance on opposing counsel prior to it being provided to the QME, the WCAB could discern no violation of the rules, and found that the video surveillance could be sent to the QME.
Illinois Midwest v. WCAB/Rodriguez ADJ11532204 (2d Dist. Ct. Appeal 1/23/2026)
Home health care has long been a source of litigation, especially in the context of the Utilization Review (“UR”) system. In the past, applicants had relied on the case of Patterson v. Oak Farms (2014) 79 CCC 910 for the position that continuing medical treatment could not be terminated absent “substantive medical evidence of a change in condition.” In Rodriguez, applicant’s home health care treatment, which had been authorized in six-week increments for the preceding year, was denied by UR. Applicant argued this situation fell within the ambit of Patterson and the WCAB found in favor of Applicant’s argument that, though a UR denial for home health care was timely, applicant was entitled to ongoing home health care as Defendants did not show a change in applicant’s condition or circumstances. The 2nd District Court of Appeals heard this matter and rescinded the WCAB findings and order, ultimately finding that the WCAB does not have jurisdiction to resolve UR decisions, and UR decisions must be reviewed by Independent Medical Review. The Court found no statutory exception to the UR guidelines for treatment that is “ongoing,” expressly rejecting the argument that Patterson applies to post-2013 injuries. At present, it remains unclear whether this will be challenged at the California Supreme Court.
Should you wish to discuss any of the above material, please do not hesitate to contact your LFLM attorney.
Written By:
Anya M. Leonard, Esq. of our LFLM-San Francisco Office
Laughlin, Falbo, Levy & Moresi, LLP.