WCDefenseCA

So there’s the bad news and the not as bad news.  First, the bad news.

Circling the wagons against the Wild West of permanent disability and waiting for the Court of Appeals cavalry, hoping  for a reversal against the ravages of Almaraz/Guzman, is no longer an option.  The sun has set, no Cavalry bugle will sound, and the latest appeal of Almaraz/Guzman had dried up.  Almaraz has at last received closure from the 5th Appellate District.

The reforms of SB – 899 brought several changes to the California Workers’ Compensation system, most of them very good.  Among those reforms was the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or the Guides, for short), at least according to Labor Code § 4660.  As enacted, there would be one set rule for rating and appraising permanent disability, making Workers’ Compensation liability consistent, uniform, and objective, as called for by Labor Code § 4660.  That was the dream that drew our wagons out West to begin with.  Then, came the troubles…

The joint cases of Almaraz/Guzman, to some extent, did away with this portion of the reform, and brought back the uncertainty that ruled pre-SB 899.  Almaraz/Guzman seized upon the language of § 4660(c), specifically the fact that “[the AMA Guides] … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”  (Almaraz v. Environmental Recovery Services (2009) 74 Cal. Comp. Cas 1084).

According to Almaraz, and its companion case, Guzman v. Milpitas Unified School District, the AMA guides, contrary to the call for “consistency, uniformity, and objectivity” can be twisted and turned to suit the vagaries of “fairness” and “equity,” inflating the whole person impairment rating and exhausting insurance reserves.

Before a series of appeals chipped away at this decision, the only limitation (like limiting a child to all the cookies in the cookie jar), was that the evaluating physician had to remain within the four corners of the AMA Guides, in order to “adequately” evaluate the applicant’s impairment.

So where are we now?  Well, on the final round of appeals, Almaraz and Guzman split off.  While Guzman went on to produce the Guzman III opinion (more on this later), Almaraz is done with.

The bad news is that Almaraz is, for now, the law of the land – evaluating physicians can use any part of the AMA guides to evaluate the impairments of the applicant.  This means using charts for the spine to provide an impairment degree for the knee, combining methods of measuring impairments such as grip loss and range of motion loss (specifically prohibited by the Guides), and whatever else appeals to the doctor’s (and the persuasive letters of the applicant’s attorney) sense of judgment.

Left at that, self-insured employers and insurance companies rightly fear the Almaraz beast that stalks the night – by day, an ordinary man; under the full moon the monster that ravages the country-side of Workers’ Compensation.  Fortunately, there is a silver lining (or a silver bullet?)

What’s the less-bad news?  While Almaraz lets evaluators loose on Workers’ Compensation defendants, Guzman reigns them in with a tight leash.  How to use this silver bullet on the charging Wolfman?  Stop by tomorrow, and you’ll see.