WCDefenseCA

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.

The California Court of Appeal denied applicant’s petition for a writ of review in the recent case of Kandi Sanders  v. Workers’ Compensation Appeals Board (California State University).  The main issue in question is whether Almaraz/Guzman requires an evaluating physician to stay within the “four corners” of the AMA Guides for a psyche injury.

In a report, dated June 27, 2011, the agreed medical evaluator wrote “[u]ntil such time as (psychiatric impairment) is clarified legally, it is my intention to continue to describe an impairment by the GAF, by the overall impairment in Chapter 14 of the AMA Guides, as well as the 1997 PDRS ratings.”  The permanent and stationary date was in 2011.

The matter proceeded to trial at which time the workers’ compensation Judge awarded applicant 9% permanent disability.  Applicant contested this award, arguing that the PD rating corresponding to her GAF was incorrect, and that the work functions factors of the 1997 schedule are a better indication of her permanent disability.

So what did the WCAB find?  Is the 1997 schedule within the four corners of the AMA Guides if tucked into the flap of the back cover?  Not so much.

The WCJ, in his report, reasoned that applicant has stipulated to the 9% rating and was so bound by her stipulation.  Secondly, the A/G decision limited the rule-bending and impairment-finagling to the four corners, which does not include the work function factors in the 1997 schedule.  The WCAB adopted and incorporated the WCJ’s report and recommendation, denying applicant’s petition for reconsideration, and the Court of Appeal followed suit, rejecting applicant’s contention that the 2005 schedule for converting psyche injuries to permanent disability ratings is inadequate.

Perhaps equating a psyche injury to a shoulder impairment would yield better results?

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.

Is it still news if it’s not particularly “new”?

The Center for Study of Social Insurance has provided an estimate of the effect of the adoption of the AMA Guides for California’s workers’ compensation system.  Your typical California workers’ compensation defense attorney should be thanking his or her lucky stars for the adoption of the AMA Guides – a actual, scientific approach to rating disability, with a limit of quack doctors puffing up liability and impairment – a dream come true!

The estimate looked at the years of 2010 through June of 2011 as compared to the years 2003-2004, specifically looking for total rating, total pay-outs, and other indicators of that sort.  The results are no particularly surprising but still deliciously wonderful to hear:

A 40% drop in ratings before apportionment for unrepresented cases and a 28% drop in represented cases (it appears that it is worth it for applicant’s to retain an attorney).

A 52% drop in compensation for unrepresented cases and a 37% drop in represented cases.

And, the best part of all, a 25% reduction in cases that would have had some rating of permanent disability.  Bear in mind – that is with Almaraz/Guzman trying to worm its way through the heart of the AMA Guides and the 2005 reforms.

The governance of California is a book riddled with errors big and small – it does not appear that history will regard moving from the 1997 schedule to the AMA Guides to be among them.