Take a look at your bookshelf (or your lawyer’s bookshelf when you visit his or her office to complain about why the applicants are bleeding you dry) what do you see? AMA Guides 5th Edition? Check. CEB Workers’ Comp? Check. Smiling picture of your humble blogger with the biggest thumbs up in the world? Check. Check. Check.
But what about the AMA Guides Sixth Edition? Not to be confused with the Sith Edition, which is used for rating permanent impairment in Jedi who have succumb to the dark side of the Force.
Put down the happy pills and close up the liquor cabinet, we’re off to wacky will thanks to the case of Edward Frazier v. State of California, CDCR – Correctional Training Facility.
The AME performed a typical evaluation, but said that the straight rating under the AME Guides would have yielded a 30% whole person impairment, but that didn’t feel right.
So the AME cracked open on the 6th Edition of the AMA Guides and found that “for a gentleman with the same mild left ventricular hypertrophy an impairment of 23% WPI is recommended.”
Now, your humble blogger doesn’t know much about workers’ compensation law, but I’m almost certain I remember something about “the four corners of the guides.”
So here’s the loophole:
Within the four-wall fortress of the AMA Guides, 5th Edition, there is an escape tunnel, and it leads to wherever the evaluating physician wants to go.
The Guzman decision noted that “[t]he physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence.”
Well, in Frazier, the AME looked up the same injury in the sixth edition, and adopted the position that the sixth edition constitutes “recent research” and should be used instead of the fifth edition, and in that way provided a whole person impairment of 24% instead of 30%.
Put away the party hats, this is nothing to be happy about. This approach opens the door for generic argument that the fifth edition is outdated, and Labor Code section 4660(b)(1) becomes effectively irrelevant, because whenever a party is displeased with the results of the fifth edition, the sixth edition can be deemed “recent research” and used to rate the impairment instead.
Don’t forget, good people of the internet, that the A.M.A. recently recognized obesity as a disease, so don’t be too surprised if this line of reasoning leads you down a trail that ends with you paying for treatment because the office donuts provided by the supervisor contributed at least 1% to the applicant’s obesity.
And don’t look to the legislature to save us either – SB-863 specifically excluded the Guzman issue from discussion (See Section 1, subsection (c)).
Do not be fooled, dear readers, this case is the exception and the trend will go the other way – whichever book, article, research, or chorus of quackery leads to a higher impairment, that’s what will normally fly in California’s worker’s compensation system.
In other words, the fun is just beginning!