What better way to brighten your Monday, dear readers, than to tell you the tale of a failed attempt to use the ol’ Almaraz/Guzman hot air machine to inflate the impairment of an injured worker?
Consider, if you will, the case of Davis v. Walt Disney Company. Now, Disney Land truly is the happiest place on Earth, but the Disney Company office is probably not even in the top 10, as poor Mr. Davis discovered when he hurt his back while pulling a heavy filing cabinet just three days into the year of 2008.
Well, he apparently sustained considerable harm from his injury, but of particular interest was the method used by the orthopedic Agreed Medical Evaluator. The good doctor waved his wand, cast his spell, and after saying “hocus pocus” a few time, started flipping through the AMA Guides until he found Figure 15-19, and multiplied the 80% whole person impairment for total loss of function by the 60% loss of function to provide a WPI of 48% (the “straight” AMA rating would have yielded a DRE Category IV 26% WPI).
The AME testified that he relied on simple arithmetic to arrive at this 48% figure, and that there was no table or graph telling him that 60% loss of function would yield a 48% whole person impairment.
After a brief trial and a trial brief (get it? Ha, ha, ha…) the WCJ found that the Almaraz/Guzman rating was not substantial evidence.
The AME concluded that 60% of applicant’s cervical spine function was lost, despite very different conclusions reached by the Range of Motion and DRE Methods. As the A/G opinion holds, a physician is not allowed to conduct a fishing expedition through the Guides ‘simply to achieve a desired result’.
Of particular interest in the fact that if the AME were to use the work restrictions he imposed in a pre-2005 rating schedule (limitation to light work), the pre-2005 rating schedule result would be the same: 50% WPI (the AME added pain to the 48%, resulting in 50% WPI).
During the deposition of the AME, defendant also made another good point: sometimes there isn’t a linear growth in impairment, so while a total loss of function might produce 80% WPI, there is no reason to assume that 50% loss in function would result in 40% WPI, and not 35% or 45%. Accordingly, the use of simple arithmetic to calculate the WPI to the cervical spine is something the good doctor came injected himself, and is not based on the AMA Guides in this case.
Through a vigorous defense and assault on the Almaraz/Guzman rating, the defense was able to dispel the magic smoke and mirrors, and hammer the case back down to the strict AMA Guides.
As my readers will recall, we’ve seen the Almaraz/Guzman ratings defeated in the past. For example, we saw the WCJ and WCAB reject an A/G rating in Olguin v. ESIS; we’ve seen the WCAB uphold an evaluating physicians’ refusal to apply A/G in the Malhotra v. State of California case; and we’ve even see A/G used to reduce whole person impairment in the Riley v. City of Pasadena case.
Unfortunately, these are rare examples, and the norm is to witness the magic that is Almaraz/Guzman turn a papercut into a paralysis. Abracadabra.