WCDefenseCA

Your humble blogger has learned, through painful experience, that there are certain facts in life which are inconvenience, unpleasant, and unmoving.  In the words of Mary Schmich: “Prices will rise.  Politicians will philander.  You, too, will get old.”  In the world of workers’ compensation, one such fact is Almaraz/Guzman.  No, we can’t just have our AMA Guides.  No, we can’t have any measure of certainty or predictability as to the depth or extent of liability.

Your humble blogger has reluctantly come to terms with this very unpleasant and hopefully temporary fact.  But, the use of A/G needs to be reined in like a wild horse that has run away and started wildly assigning higher impairment values than what is reasonable.

With that pleasant image of Mr. Ed running away, going to medical school, becoming a physician, and, after several years of experience, becoming an applicant-oriented QME, we conclude our humble blogger’s stream of consciousness and move on to the matter at hand: Ramirez v. Space Lok.

In Ramirez, applicant sustained several industrial injuries, but the focus of the case was the thumb.  The PQME found that the 1% assigned by the AMA Guides to the thumb was not adequate, and, instead, used grip loss to assign 18% WPI (for the folks keeping up with the numbers at home, that mean the doctor found a 61-100% loss of strength for the left hand).

Although the WCJ instructed the DEU rater to rate the 1% WPI as per the “straight” AMA Guides, the WCAB, upon applicant’s petition for reconsideration, reversed, ordering the 18% WPI to be rated instead.

Now, again, I understand that the PQME found that applicant had pain in his thumb and that 1% WPI did not adequately reflect applicant’s impairment.  Now, I also understand that, a TOTAL AMPUTATION of the thumb yields a 22% Whole Person Impairment.

Now, you might be thinking to yourself – “well, if the guy can barely use his left thumb, it’s practically an amputation, so 18% vs. 22% doesn’t sound so unreasonable…”  Well, consider this: there are very few people in the world that can effectively fake a thumb amputation.  By contrast, subjective complaints such as pain and grip loss are not as reliable.  But don’t take my word for it, consult the AMA Guides: the instructions for rating grip loss are, at every other step, methods to try to minimize fraud because grip loss is inherently subjective.   For the AMA Guides, a good rule of … wait for it … THUMB is to focus on objective impairment instead of subjective complaints.

Now, your humble blogger has no suggestions about the veracity of Mr. Ramirez’s claim – two surgeries and documented deformities to the thumb seem pretty objective to the undersigned.  However, it appears improper to equate the maximum impairment for a measure upon which the AMA Guides clearly casts so much doubt and suspicion, as to the maximum impairment for an objective impairment such an amputation.

If Dr. [of law] Grinberg was on call, the results would be very different indeed.

I don’t know if this argument was used or proposed to the PQME or if it would have gained any traction if it had been.  But, on a spectrum of a “straight” rating of 1% and a total amputation of the thumb at 22%, perhaps some QMEs would be persuaded that 18% is not appropriate for a person who still has a somewhat functioning thumb.

Have a good weekend, folks!