UPDATE: As of 1/15/14, this case is now PUBLISHED and citeable.

Hello, dear readers!

Welcome to the first full week of 2014.  Vacationers are returning to clog up our commute, our co-workers are filling the cubicles next to ours, and, in the most merciful of small mercies, all the kids are returning to school.

So, what better way to start off this full week of 2014 than to bring you another disappointing (yet, blessedly unpublished) opinion from the Court of Appeal on the breadth and scope of Almaraz/Guzman.  The case is that of City of Sacramento v. WCAB (Arthur Cannon).  The facts are fairly simple as well: Mr. Cannon sustained an injury to his left foot, plantar fasciitis, which does the evaluating physician found had no ratable impairment.

However, in considering the impairment under the Almaraz/Guzman case, which is a favorite among the defense community (right?), the AME provided a 7% whole person impairment, based on “having a limp, despite the absence of any arthritic changes about adjacent joints.”

See, defendant Sacramento sought to have the A/G rating rejected because plantar fasciitis is not “complex or extraordinary.”  The Workers’ Compensation Judge agreed, and elected to use the straight rating.  (Here’s a fun fact: if you are at a table with nine of your friends, odds are that at least one of you will have plantar fasciitis at one point in your lives.)

On reconsideration, agreed with Mr. Cannon, however, reasoning that the injury does not have to be complex or extraordinary to warrant an A/G rating.  Unfortunately, on appeal, the COA agreed.

The COA reasoned that Guzman III wasn’t LIMITING the use of alternative ratings to complex or extraordinary cases, but just providing another scenario when A/G should be used.  Specifically, “the Sixth District was using the term ‘complex or extraordinary cases’ to describe ‘syndromes that are “poorly understood and are manifested only by subjective symptoms,”’ which the AMA Guides do not, and cannot, rate.”

The thrust of the problem is that the AMA Guides might not provide a rating for conditions that manifest themselves only subjectively.  But is this a problem?  Surely the writers of the AMA Guides had at least some experience with medicine and treatment… they knew these conditions existed and, for whatever reason, did not want to provide impairment rating.

But, that being said, your humble blogger is with Sacramento on this one.  When the Sixth District tells us that the Guides intended to allow physicians to deviate from strict interpretation of the Guides in certain cases, and in THOSE complex or extraordinary cases the Guides allow for some sort of deviation, what else are we to think?

Hopefully, we’ll get some sort of authority soon that will effectively limit the application of A/G.  Right now, the bar is fairly low for performing an alternative rating and having it stick, and, as common as people with plantar fasciitis, alternative ratings result in increased WPI.

Now, bear in mind, if any applicant’s attorney waves this case in your face, you can point to Rule of Court 8.1115(a), but it is not a pleasant thought to know that the inclination of the WCAB is to allow an A/G rating for any reason.