Happy Wednesday, dear readers! 

It should come as no surprise to frequent readers of this most humble of blogs, that your humble blogger is a keen observer of the fact that life is not fair.  However, besides your humble blogger’s own perceptions of the human experience, I frequently hear the laments that the rulings of the WCAB are particularly unfair to defendants, and that different standards are applied to arguments, depending on which party is making the argument. 

So, let us consider the case of Savoie v. State of California.  In that case, the medical-legal examiner opined that the strict rating under the AMA Guide did not accurately reflect the whole person impairment, and instead offered an opinion under Almaraz-Guzman.  Nothing new here, right?  Well, the medical-legal evaluator opined that a lower impairment more accurately reflects the WPI. 

Now, oddly enough, the panel opinion does not reflect whether this medical-legal was an AME or a QME.  Of course, an AME’s opinions would be given considerably more weight and deference, but it is not clear the status of this particular evaluator from the panel opinion.

After trial, the WCJ adopted the opinions of the medical-legal evaluator, finding a rating based on the lower, 18% WPI rather than the strict AMA rating.  However, on appeal the WCAB reversed!

So… why did the WCAB decide the Almaraz/Guzman opinion was inadequate?

First, the panel summarized the issue as follows: “Here defendant is attempting to utilize an alternative rating to reduce the applicant’s permanent impairment.  Assuming that it is even possible to utilize Guzman to reduce a scheduled impairment, any such analysis must come under even stricter scrutiny.”   (Emphasis in original).

The panel went on to conclude that the medical-legal evaluator’s rebuttal of the AMA Guides was not sufficiently supported, and that it “need not determine whether it is ever permissible to reduce a scheduled impairment by utilizing a Guzman analysis.”

Well… why wouldn’t it be? 

Guzman offers no restrictions on the purpose of the rebuttal of the strict AMA Guides.  The sole guidance provided is that the AMA Guides can be rebutted, and, when rebutted, the medical-legal evaluator whether AME or PQME, can use another table or chart to more accurately rate the impairment. 

In Gomez v. Castle & Cooke, Inc., a 2012 panel decision, the majority of the split panel upheld the WCJ’s reliance on a QME’s “reverse” Guzman analysis to reduce the WPI that would have resulted from the strict AMA Guides application.  Similarly, in Riley v. City of Pasadena, a 2011 panel decision, the AME in that case was upheld in an Almaraz/Guzman opinion reducing WPI from strict AMA guides application.

Further, Guzman offers no direction to treat a result that benefits the defense with greater scrutiny than that which benefits applicants.  As any cook will tell you, that which is good for the goose is good for the gander.

Your humble is all for limiting the application of Guzman and its progeny.  In fact, I will be the first to volunteer that we should eliminate Guzman altogether and both applicants and defendants can be bound by strict AMA Guides.  But in the meantime, it would make sense to the undersigned that if the AMA Guides can be rebutted, then whether it is to the benefit or the detriment of injured workers is not relevant in the face of due process considerations.