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.