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.