A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.