Almaraz

The 5th District Court of Appeals denied State Fund’s Petition for Writ of Review on 6/16/11. State Fund filed a Petition for Review with the Supreme Court on 6/28/11. The Supreme Court denied State Fund’s Petition for Review in August 2011.

Guzman III: 6th Appellate District decision & Cal. Sup Court Denied review (2010)

Milpitas Unified School District v. WCAB (Joyce Guzman), 187 Cal.App.4^th 808 (8/19/10); modified 9/1/10 & Calif. Sup. Court denied review 11/10/10.

Physicians can deviate from the strict application of the AMA Guides and apply other parts of the AMA Guides The burden of proof is placed upon the party wishing to support this departure. Both defendants and applicants have the opportunity to try to rebut the strict application of the AMA guides.

The doctor’s opinion must be based upon substantial evidence. Future cases will be giving us more information on what constitutes substantial evidence. Some hints found in Guzman III of substantial evidence are:

1. There is some suggestion that the departure should occur to accommodate complex or extraordinary cases. The term “complex” is mentioned numerous times in the decision.
2. The physician must set forth the facts and reasoning that justify the deviation from the pure AMA rating.
3. A departure based upon the physician’s clinical judgment might be acceptable. However, without a complete presentation of the supporting evidence on which the physician based his or her clinical judgment, the judge may not be able to determine whether the party successfully rebutted the rating.
4. The medical opinion must be predicated on reasonable medical probability. The physician’s opinion must be based on facts that are still germane. The opinion must be based on an adequate medical history and examination. The physician’s opinion must not be based upon surmise, conjecture, or guess.