Sacramento, CA (CompNewsNetwork) - On February 3, 2009, the WCAB issued its first en banc decision in Almaraz-Guzman I, 74 Cal. Comp. Cases 201.Upon reconsideration, on September 3, 2009, the WCAB issued its second opinion in Almaraz-Guzman II, 74 Cal. Comp. Cases 1084.On August 19, 2010, the 6th appellate district court of appeal issued its published decision in Milpitas Unified School District vs. WCAB (Guzman), herein referred to as “Guzman III” which affirmed the WCAB en banc decision in Almaraz-Guzman II. [Almaraz is pending in the 5th District Court of Appeal at the time the decision in Guzman was filed by the 6th District DCA.]
So what did the district court of appeal say in their published decision affirming the WCAB en banc decision?The justices essentially merged conclusions of the WCAB from Almaraz-Guzman II into a single final decision:The language of Labor Code section 4660 permits reliance on the entire AMA Guides to the Evaluation of Permanent Impairment, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case.
The DCA decision should be noted for what the justices said rather than what arguments they rejected from the employer community, insurance industry, Director of the DIR and chambers of commerce.The DCA panel discussed the history of Labor Code section 4660 including the provision in section (b)(1)that “ ‘the nature of the physical injury or disfigurement' shall incorporate the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition).”
The DCA panel emphasized the legislature's reference to the word “incorporate” and distinguished between a party's ability to rebut a rating from the 2005 PDRS from a party being allowed to rebut a WPI rating that is part of a rating from the 2005 PDRS.Here's what the DCA said about use of the AMA Guides in determining the nature of physical injury or disfigurement, at pages 14-15:
“Applying the settled rules of statutory construction, we agree with the District that the Guides must be applied "as intended" and "as written," but we take a broader view of both its text and the statutory mandate.Section 4660, subdivision (b)(1), recognizes the variety and unpredictability of medical situations by requiring incorporation of the descriptions, measurements, and corresponding percentages in the Guides for each impairment, not their mechanical application without regard to how accurately and completely they reflect the actual impairment sustained by the patient.To "incorporate" is to "unite with or introduce into something already existent," to "take in or include as a part or parts," or to "unite or combine so as to form one body."(Webster's Third New International Dict. p. 1145 (1993); Random House Dict. of the Eng. Lang. 2d ed. (1987) p. 968; American Heritage Dict. 3d ed., p. 588.)Section 4660, subdivision (b)(1), thus requires the physician to include the descriptions, measurements, and percentages in the applicable chapter of the Guides as part of the basis for determining impairment.
We cannot expand the statutory mandate by changing the word "incorporate" to "apply exclusively."Nor can we read into the statute a conclusive presumption that the descriptions, measurements, and percentages set forth in each chapter are invariably accurate when applied to a particular case.By using the word "incorporation," the Legislature recognized that not every injury can be accurately described by the classifications designated for the particular body part involved.Had the Legislature wished to require every complex situation to be forced into preset measurement criteria, it would have used different terminology to compel strict adherence to those criteria for every condition.A narrower interpretation would be inconsistent with the clear provision that the Schedule -- which itself incorporates the Guides (PDRS p. 1-2)--is rebuttable (§ 4660, subd. (c)), and it would not comport with the legislative directive to construe the workers' compensation statutes liberally "with the purpose of extending their benefits for the protection of persons injured in the course of their employment.(§ 3202.)”
So here, the DCA is essentially telling us that a given WPI rating must be “accurate” in terms of how a rating reflects the effect an impairment has on a person's ADL functioning.In the next section of its opinion, the DCA tells us that uniformity, consistency and objectivity mandated by Labor Code section 4660(d) refers to the 2005 PDRS and not to a WPI rating derived from the AMA Guides, which is established in section 4660(b)(1) which is a completely separate sub-section of the Labor Code:
“Subdivision (d) of the statute is specifically addressed to the development, adoption, and amendment of the Schedule itself, not the physician's evaluation of impairment.Nevertheless, we have no reason to question the implicit assumption that while directing those features to the Schedule itself, the Legislature sought consistency, uniformity, and objectivity in the overall process of determining disability across individuals.”Id at page 15.
Then the DCA emphasizes the instructions in the AMA Guides on page 11 that mandates that an evaluating physician uses his or her clinical judgment based on his or her experience, training, skill, thoroughness in clinical evaluation and ability to apply the AMA Guides.The DCA also cites page 1-4 of the 2005 PDRS that mandates a physician to use his or her clinical judgment in evaluating unlisted medical conditions that cause objective findings with measurable impairment by comparing with similar conditions that also cause measurable impairment of function in performing ADLs.Then the DCA opinion at page 17 mandates that the entire AMA Guides 5th edition, including Chapters 1 and 2 apply in our cases:
“Accordingly, while we agree with the District that the Guides should be applied "as intended" by its authors, such application must take into account the instructions on its use, which clearly prescribe the exercise of clinical judgment in the impairment evaluation, even beyond the descriptions, tables, and percentages provided for each of the listed conditions.The Board aptly observed that the descriptions, measurements, and percentages cannot be dissociated from the balance of the Guides, particularly Chapters 1 and 2, which contain the instructions on the appropriate use of the ensuing chapters to perform an accurate and reliable impairment evaluation."Thus, the AMA Guides is an integrated document and its statements in Chapters 1 and 2 regarding physicians using their clinical judgment, training, experience and skill cannot be divorced from the balance of the Guides."
The DCA then emphasized what the WCAB en banc decision included – that a physician cannot provide a higher WPI rating just in order to achieve a desired result – that all WPI ratings must be based upon substantial evidence.Here is exactly what the DCA panel says about a physician using alternative rating methods, at page 19:
“Accordingly, a physician's medical opinion that departs unreasonably from a strict application of the Guides can be challenged, and it would not be acceptable as substantial evidence or fulfill the overall goal of compensating an injured employee commensurate with the disability he or she incurred through the injury.If Guzman's carpal tunnel syndrome, for example, is adequately addressed by the pertinent sections of Chapter 16, an impairment rating that deviates from those provisions will properly be rejected by the WCJ.As the Board's decision does not disregard, retreat from, or compromise the requirement of substantial evidence, we cannot conclude that it erred to the extent that it allows physicians to use their clinical judgment in applying the Guides.The District's assertion that the WCAB's decision encourages a physician to misapply the Guides freely by using " 'any chapter, table or method' he/she deems more appropriate" is not well taken.
What is interesting about this paragraph is that the DCA suggests that Dr. Feinberg, the AME in Guzman, should start with Chapter 16 of the Guides (The Upper Extremities) and must state how and why any other chapter, table or method is more accurate in rating Ms. Guzman's carpal tunnel syndrome.For that matter, Dr. Feinberg indicated in his reporting that the Applicant lost 25% of her upper extremity function for each arm, which is a 15% WPI since an entire arm is worth a 60% WPI for total loss of use of an arm.
This derives from Table 16-3 on page 439, which is within Chapter 16.So all Dr. Feinberg has to do at this point is explain how and why he believes application of Table 16-3 is the most accurate method of determining the Applicant's WPI rating as opposed to utilizing the strict method of rating carpal tunnel syndrome based on page 495, which yields a 3% WPI for each wrist.In his original reporting, Table 16-3 was apparently not mentioned as the basis of his rating.
What is interesting about the DCA decision is that the justices expect Chapters 1 and 2 of the AMA Guides to apply in all cases and mechanical application of the descriptions and measurements in Chapters 3 through 17 do not apply in a vacuum.At page 20, the DCA states:
“Those first two chapters make it clear that an impairment rating based solely on the descriptions, measurements, and percentages in the succeeding chapters without the use of physicians' clinical judgment, training, experience, and skill would contravene the assumptions and intent of the authors.The failure to follow all of the instructions in the first two chapters could result in useless evidence, inadequate diagnostic reasoning, and inaccurate and inconsistent ratings. “
But what about use of a strict rating?The DCA seems to require one first and then alternative WPI ratings may be allowed later.At page 20 again:
“Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected.”
Labor Code section 4660(c) mandates that the 2005 PDRS constitutes “prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”The DCA quoted the WCAB en banc decision that included long established case law that allows a party to rebut a permanent disability rating.The DCA upheld the WCAB in its conclusion that any component of a rating under the 2005 PDRS can be rebutted.But in rebutting a strict WPI rating, the DCA said at page 23:
“Simply presenting a view contrary to an established rating in the Guides, however, would not be sufficient to rebut the PDRS rating.As discussed earlier, an impairment rating that is inadequately supported by evidence and reasoning—and unquestionably, a rebuttal position arrived at by hunting through the Guides for a more favorable rating--will result in an opinion the WCJ will necessarily reject as insufficient evidence.The Board itself emphasized that substantial evidence is necessary to establish a permanent disability, and any opinion proffered without "facts and reasoning [that] justify it" will not be sufficient.Any WCJ would err by allowing the scheduled rating to be rebutted based on an obviously inapplicable section of the Guides. (Footnote omitted)
If the physician expresses the opinion that the chapter applicable to a particular kind of injury does not describe the employee's injury, but all other chapters address completely different biological systems or body parts, it would likely be difficult to demonstrate that that alternative chapter supplies substantial, relevant evidence of an alternative WPI rating.
In order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.That explanation necessarily takes into account the physician's skill, knowledge, and experience, as well as other considerations unique to the injury at issue.In our view, a physician's explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources.
The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence.
If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician's opinion will properly be rejected.Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the trier of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment.”
What exactly does the DCA mean by this section?Can a physician still use a different chapter, table or method that is outside the applicable chapter of the AMA Guides based on the underlying part of body in question, such as carpal tunnel syndrome in Chapter 16?How about Chapter 13, Table 13-22 on page 343 for rating chronic pain in one upper extremity, or Table 13-15 on page 336, the station and gait impairment rating, instead of using Chapter 17 for a knee injury? Can a physician use Table 6-9, the hernia table, for an injured worker with a bad back but no hernia?It appears that the DCA is still allowing use of any chapter, table or method allowed under the AMA Guides as long as the physician describes how and why an alternative rating is more accurate.
Notice that the DCA opinion does not settle the issue of what a “more accurate” rating means?Does accuracy of a rating only take into account the effects of industrially caused impairment on ADL functioning or can a physician take into account the effects of an impairment on work functioning as well?This is really an academic argument since many ADL functions also include work functions such as sitting, standing, walking, stair climbing, writing, typing, driving, lifting and so forth.Some physicians refer to them as “work ADLs” since they appear as “ADLs” in Table 1-2 on page 4 of the AMA Guides.So it appears that the DCA, like the WCAB, wants WPI ratings to reflect how a work injury caused impairment affects a person's ability to perform work activities that overlap with ADL functioning in order to be the most accurate rating.
What does the DCA panel mean by its assertion on page 24?:“In our view, a physician's explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources.”
The term “a priori” means “without prior analysis.”This assertion seems to mean that a physician may utilize new medical science that updates the applicability of rating impairment in the 5th edition of the AMA Guides.For example, the criteria for diagnosing complex regional pain syndrome (CRPS) in an upper extremity in Table 16-16 are obsolete.New diagnostic criteria for that condition exist in the medical community and the DCA seems to say that new diagnostic criteria can be used to justify impairment ratings.
A physician “may rely on standard texts or recent research data as a basis for his or her medical conclusions and the WCJ should be permitted to hear that evidence.”Id at page 24.So a physician cannot obtain a WPI rating outside the AMA Guides but he or she can refer to outside resources to obtain a diagnosis that results in a WPI rating that has to be derived from the 5th Edition of the Guides.
Finally, in its conclusion, the DCA panel emphasizes the mandate that a physician arrive at the most accurate ratings and explain his or her reasoning along with the evidence he or she is relying on in arriving at this or her conclusions:
“By using the word "incorporate" and retaining a prima facie standard for the introduction of the PDRS ratings, the Legislature obtained a more consistent set of criteria for medical evaluations while allowing for cases that do not fit neatly into the diagnostic criteria and descriptions laid out in the Guides.The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees.To accommodate those complex or extraordinary cases, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides.The PDRS has expressly incorporated the entire Guides, thereby allowing impairment in an individual case to be assessed more thoroughly and reliably.”
Does this mean that alternative ratings can only apply in “complex or extraordinary cases” and strict ratings apply in all other ones?No, the decision seems to say that there always has to be an accurate rating in all cases, complex or not, and impairment in an individual case must be assessed thoroughly and reliably. Ms. Guzman's wrist condition is neither complex nor extraordinary, yet the effects of her wrist impairment on her ability to work are significant.
By affirming the WCAB en banc decision in Almaraz-Guzman II, the court of appeals appears to adopt the accepted practice for a physician to identify permanent objective medical findings that are caused by an industrial injury and to find a WPI rating that most accurately reflects the effect of those permanent objective medical findings on the injured worker's ADL functioning, including work functioning. The bottom line is for every physician to indicate how and why an ultimate WPI rating is the most accurate, strict interpretation of the AMA Guides or not.
Physicians should be advised by all counsel to provide a strict WPI rating from the AMA Guides, state whether it is accurate or not and then offer a “Guzman III” alternative rating that is more accurate and if so, explain how and why it should be adopted as opposed to a strict one.Physicians may offer a strict WPI rating and not mention accuracy at all and place the burden on a party to develop the record to obtain an alternative rating that may be contended to be more accurate than a strict one.The DCA opinion seems to allow physicians to take either tact.
Experience so far indicates that it is preferred that a physician in his or her original MMI report, provide a full explanation of his or her WPI ratings, whether based on a strict interpretation of the AMA Guides or based on an alternative rating method, or both, with a full explanation of what the permanent objective medical findings exist and how the industrially caused impairment affects the injured worker's functioning.If the physician adopts the alternative rating method as the most accurate, he or she must state with reasonable medical probability how and why it is more accurate than a strict rating.
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