WCDefenseCA

This blog has covered some tactics that good defense lawyers can use to push back against the impairment inflation of Almaraz/Guzman. Sometimes, we even see A/G used to actually cut down the total impairment.  In the recent case of Malhotra v. State of California, Department of Developmental Services, the panel Qualified Medical Evaluator was not inclined to jump on the A/G bandwagon… and the Workers’ Compensation Judge would have none of it.

Applicant sustained an injury consisting of a laceration to the small finger of his hand, resulting in decreased range of motion and loss of sensation.  The panel QME found this to reflect a 2% whole person impairment.   The applicant’s attorney tried, unsuccessfully, to play the A/G tune for the PQME and get him to rate grip loss with or instead of the decreased ROM and loss of sensation.

But he wouldn’t budge – the PQME in this case manifested some strange and completely irrationally dedication to the truth and the honest evaluation of applicants.  The AMA Guides clearly state that, in the presence of reduced range of motion, grip loss cannot be rated.

In crafting the instructions to the DEU rater, the WCJ noted that the PQME “does not appear to be aware of the latitude he has,” and proceeded to instruct the DEU to rate grip loss.  The result, of course, was a 20% permanent disability rating.  On cross-examination, the DEU rater testified that he would not have rated grip loss, but would have instead rated applicant with 1% permanent disability, but the Judge’s instructions are the Judge’s instructions.

After the WCJ awarded applicant 20% permanent disability, defendant promptly and zealously petitioned the Workers’ Compensation Appeals Board for reconsideration.  On what possible grounds could an objection to the course of events be made?  Well, in the en banc case of Blackledge v. Bank of America (2010), the WCAB held that the physicians assess the injured employee’s whole person impairment, and the WCJ frames rating instructions.

According to the WCAB, the WCJ, in this case, was “again usurping the role of the physician in determining that applicant’s impairment should be based upon grip loss, rather than the factors he identified that comport with the AMA Guides.”   (To my dear WCJs out there, please recall, your humble blogger but reports these opinions, he does not draft them.  If he were free to draft binding opinions, there probably would be considerable cause to be very angry with what he had to say…)

The end result was a victory for the defense and for anyone interested in having a workers’ compensation system build on consistency and predictability – a scratch on your pinky does not render you only 4/5th of the worker you were.

A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

The practice of California Workers’ Compensation defense is often one of struggling against the stream.  Once in a while, one finds himself swimming with the current.

In a recent case, a truly rare and wondrous event occurred.  An AME used Almaraz-Guzman to actually reduce the whole person impairment of an applicant.  In Riley v. City of Pasadena (2011) 39 CWCR 117, the AME evaluated applicant’s claims to injuring both her knees.

In rating the right knee, he found that the strict AMA rating would have included 24% whole person impairment (WPI) for the cartilage interval, 2% WPI for the 1.5 cm circumference difference between the left and right knee, and additional impairment, unspecified in his report, for Table 17-33.

The combined values here would have been in excess of 26% WPI, especially when adding the impairments for Table 17-33.  However, the AME instead found a more appropriate rating in another table, giving a WPI for the right knee of 26%.

Furthermore, because there were no limitations on activities of daily living, and because applicant testified she could fulfill all her job duties, the AME testified at his deposition that no rating above 7% was warranted.

Perhaps if applicant’s attorney were a regular reader of this blog, he might have been elected to denounce Almaraz and vigorously cite Guzman.  The Workers’ Compensation Judge still awarded applicant 15% permanent disability.

On petition for reconsideration, the WCAB granted the petition, finding that the AME’s rating should have been followed, the 15% PD rating was unsupported by the facts and that no evidence, other than applicant’s own testimony, supported the finding that applicant’s left knee injury was the result of her right knee injury, and so was not compensable.

In short, it’s entirely possible that an AME, or even a QME, might come along and use the power of Almaraz/Guzman to actually decrease the whole person impairment rating.  Prophesies of this are written in ancient texts hidden deep beneath the foundations of the DWC buildings.

If you should find yourself in such a situation, immediately do the following:

(1)    Pinch yourself to make sure you’re not dreaming;

(2)    Pinch yourself harder to make sure you’re not dreaming;

(3)    Don’t let the Workers’ Compensation Judge stray from this finding, dropping the name Riley if need be.  For all the times a WCJ has complained of being powerless to disagree with the medical evidence, a break for a defendant is a precious thing indeed, and well worth fighting for.

As always, dear readers, good hunting!

Last time we covered the state of the law – specifically the state of Almaraz/Guzman and the wiggle room given to evaluating physicians to increase the whole person impairment.   Is there nothing that can be done to curb the inflation of permanent disability?  As a matter of fact, there is.

Your typical Almaraz/Guzman medical report reads something like this:  “The applicant underwent a partial medial and lateral meniscectomy.  Utilizing Table 17-33, this is a 4% whole person impairment.  Taking into consideration the Almaraz/Guzman case, noting his symptoms, Table 15-6 should be used and I would assign him an additional 9% whole person impairment.”

The rating just went from an unadjusted $2,760.50 in permanent disability indemnity to an unadjusted $9,717.50.  Factoring in profession, age, etc. the ratings can go drastically up.  Often enough, these ratings are combined as expressly prohibited by the AMA Guides.  So what’s the solution?

Milpitas Unified School District v. WCAB (Guzman III) (2010) 187 Cal.App.4^th 808 pricks the ever-inflating whole person impairment balloon.  According to Guzman III, an evaluating physician can only deviate from the AMA Guides in “complex or extraordinary cases.”  These are cases that are “new or complex … or the range, evolution, and discovery of new medical conditions.”

In terms of actually performing an Almaraz/Guzman increase, simply invoking the name Almaraz/Guzman is not enough.  Guzman III holds that “[i]n order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.”

In other words, when you’re faced with an Almaraz/Guzman rating, ask yourself the following questions:

1)      Did the evaluating physician describe a condition that is “complex or extraordinary,” and one that deals with a “new or complex case” dealing with the “range, evolution, and discovery of new medical conditions?”  If the answer is no, then the impairment rating as increased by the non-strict application of the guides is not substantial evidence.

2)      Did the evaluating physician “explain why departure from the impairment percentages is necessary?”  If Dr. Ouch! simply says it is based on his experience, then the portions of the report addressing Almaraz/Guzman increases are not substantial evidence.

If one, or both, of those questions is answered in the negative, then the report should proceed on strict AMA Guides ratings only.

This argument was used successfully in a recent unpublished panel decision, where the WCAB held that “the AME has not adequately explained his use of [the tables] for spinal impairment for station and gate disorders, where the Guide specifically states that gait derangement impairment is not to be combined with a Diagnosis Based Estimate method.”

The Almaraz/Guzman increase-happy report can be whittled down, and this is how you do it.

In the near future, I’ll discuss how you can use the arguments to permanently shave off the Almaraz/Guzman increases.  But that is a post for another time.  Good hunting!