Your humble blogger bids you a happy Monday.  If your weekend experiences were anything like his, you spent your precious days off trying to keep your computer (and yourself) from overheating while scrambling to get some work done.  After all, benefits don’t deny themselves.  Just when the room got cool enough to be bearable, your easily agitated blogger came across the writ denied  case of Roberto Barajas v. Fresno Unified School District.

Mr. Barajas, employed in Fresno as a grounds-keeper and gardener, survived defendant’s petition for reconsideration and petition for writ of review, and got to enjoy an award of 27% permanent disability, penalties for late payments, and returning to work with no impairment or restrictions.

Mr. Barajas sustained an admitted specific injury when he fell off a truck.  He claimed injury to his right shoulder, wrist, hand and fingers.

After undergoing surgery on his right upper extremity, applicant returned to full duties without restrictions less than a year after his date of injury.  He testified at trial (and told the Agreed Medical Evaluator) that he can perform all his necessary tasks, but sometimes both work tasks and home tasks cause some discomfort.

The AME reasoned that his decreased range of motion would only result in a 6% upper extremity impairment, but because there is a 50% grip loss, ignoring the grip loss “does not meet the definition of accurate.”  Even though section 16.8a of the AMA guides clearly states that “[d]ecreased strength cannot be rated in the presence of decreased motion” the AME reasoned that “under Almaraz/Guzman, his grip loss is ratable and … results in a 20% upper extremity impairment.”  The AME then proceeded to combine the 6% UEI with the 20% for grip loss to arrive at a 15% whole person impairment.

I sympathize with Mr. Barajas – he now has to go about his day with pain and discomfort.  But there is a reason why grip loss is regarded with such suspicion – it is an entirely subjective test which is not reliable.  Also, in the presence of other limitations and obvious impairments to the upper extremity, grip loss is already accounted for in the other ratings, which is one reason the AMA guides specifically prohibit rating for grip loss in these cases.

The Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration, reasoning that the AME was persuasive in applying Almaraz/Guzman because he found that the decreased range of motion did not impair applicant’s ability to put forth maximum effort on grip loss.

Just to sum up – we have a grounds keeper who fell off a truck, returned to full duty with no restrictions less than a year later, feels pain and discomfort when performing his customary tasks at home and at work, but feels no pain while performing a grip loss test and puts forth maximum effort.  These facts justify an award of 27% permanent disability, and a 10% penalty for not making advances on what turned out to be (until the award was issued) a 0% PD case.  How many advances is one to make on 0%?

The man is back to work and has had a year of medical treatment (including surgery) paid for by his employer.  The award should have been 0% PD and an order to thank his employer for taking care of him through his injury.

Having lived through the 90s, your Simpsons-addicted blogger can’t help but think of Grounds Keeper Willie when reading cases such as these.

A long time ago, you humble blogger’s great grandfather took him fishing.  Grandpa always liked to do things the old way, and fishing often included grenades or dynamite and a net.  One particular trip, while grandpa went to get more explosives, your bright-eyed and bushy-tailed blogger pulled the net in from the water to find a single golden fish stuck flopping around.  As your blogger approached the golden fish, he heard it speak perfect French.  But, since your blogger doesn’t speak French, the two communicated in a relatively rudimentary form of English.

The fish offered to instill in me absolute and total medical knowledge, to the level of a seasoned practitioner, if I would just let it go.  As the fish was speaking and, on top of that, spoke the lofty and refined language of French, I did not doubt its magical abilities.  But, I thought to myself, I’m going to go to law school – when will I ever need medical knowledge?

As I think back to the fish dinner my grandpa and I shared that night, I am filled with regret that I chose a mediocre meal over the knowledge necessary to tackle the AMA guides.

You see, my dear readers, perhaps if I had taken that magical fish up on its scaly and cold-blooded offer, I could comprehend such complex medical language as that found on page 308 of the AMA Guides in section 13.2: “[w]hen injury or illness affects the [central nervous system] several areas of function may be impaired … [t]he most severe of these four categories should be used to determine a cerebral impairment rating.”

As your humble blogger reads the Guides, an impairment rating for sleep disorder cannot be combined with an impairment rating for emotional problems, because only the most severe is rated.

That’s the way the workers’ compensation Judge read the Guides in the case of Alda Mrozek-Payne v. Spectre Air Ground Freight.  There, the Agreed Medical Evaluator found applicant had sustained industrially-caused fibromyalgia (the cause of which, according to the U.S. National Library of Medicine is listed as “unknown”).  As the Guides do not have a specific section for a condition that is basically widespread bodily pain with an unknown cause, the AMA used chapter 13 (Central and Peripheral Nervous Center) to single out the symptoms of applicant’s impairment and rate them accordingly.

The good doctor rated applicant’s pain, nonrestorative sleep, chronic fatigue, depression and anxiety, cognitive dysfunction, headaches, and temporomandibular joint complaints.  Sleep was rated as per Table 13-4, and emotional or behavioral impairment was rated as per table 13-8.  But two of the categories listed in section 13.2 are “state of consciousness” and “behavior and mood,” so shouldn’t only the most severe of these impairments be combined with the remaining symptoms?

Well, not according to the Workers’ Compensation Appeals Board.  The WCAB was persuaded by the AMA’s reasoning that the individual symptoms all had to be combined.  The WCAB also went on to reason that since there was no specific section for fibromyalgia, there was no table or section to rebut.  Furthermore, the AME had stayed within the four corners of the Guides and was, after all, an AME, by whom the parties agreed to be bound.

But, come on folks, page 572 of the Guides clearly says that unless “the diagnosed condition [is] one that is widely accepted by physicians as having a well-defined pathophysiological basis” the “examiner should consider the individuals pain-related impairment to be unratable.”  (Emphasis in the original.)  Fibromyalgia does not have a “well-defined pathophysiological basis” and its cause is unknown – which means it could be genetic, hereditary, or caused by space aliens.

I should have taken that fish up on its offer…

Dear readers, please remember, your humble blogger does not fly off the handle in every case, and the finding here is not completely outrageous – reasonable minds can differ on this point as the Guides do not specifically address fibromyalgia.