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.

Almaraz/Guzman I – 2/3/09 en banc decision after reconsideration

Almaraz vs. Environmental Recovery Services (SCIF); Guzman vs. Milpitas Unified School District (Keenan) (ADJ1078163 (BAK0145426); ADJ3341185 (SJO0254688)) – 2/3/09

The WCAB consolidated these cases and issued an en banc decision after reconsideration.

Mario Almaraz was a truck driver with a post-surgical low back injury. AME (Dr. Fishman) found DRE III, which was a 12 WPI, which adjusted to 17% per AMA guides (14% after apportionment). AME mentioned a lot of work preclusions, which rated at 58% under the old schedule. WCJ did not think he could make a PD finding outside of the AMA guides

Joyce Guzman was a secretary with a CT to the bilateral upper extremities. AME (Dr. Feinberg) found 3WPI each upper extremity, which adjusted to 12%. The AME mentioned that based upon her ADL losses, she had a 15WPI in each upper extremity, which would adjust to 39% if the alternative rating held up. On cross x the rater testified that (1) she was required to use the AMA guides in determining the WPI (2) the ADL tables do not specify a particular WPI (3) The AME’s method of applying a 15 WPI to each arm is not a method sanctioned by the Guides, & (4) page 495 of the Guides specifies how to determine the WPI for carpal tunnel injuries. The rater also testified that if she were allowed to consider the 15 WPI for each arm, the alternative rating would be 39%.

The WCJs found the strict AMA ratings applied in both cases, and both applicants filed Petitions for Reconsideration.

On Recon in the en banc decision, the WCAB found:

1. The new schedule is prima facie evidence of the employee’s percent of disability, but the schedule is rebuttable; Prima facie evidence is evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted.

Then the WCAB discussed all the problems and inconsistencies with the AMA Guides. The WCAB discussed how case law in other jurisdictions recognized problems with the Guides and other cases do not always follow the Guides. The WCAB determined that a physician rebuts the AMA Guides by showing that such impairment rating would result in PD that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s PD.

3. A physician may depart from the specific recommendations of the AMA Guides and draw analogies to the Guides’ other chapters, tables, or methods of assessing impairment. Also in evaluating impairment outside of or in addition to that prescribed by the AMA Guides, the physician may consider other generally accepted medical literature or criteria. A physician cannot deviate from the AMA Guides simply to achieve a more desirable result. The method for evaluating impairment should not be based upon work preclusions that would have rated under the old Schedule.

The cases were remanded. In Almaraz the WCJ incorrectly concluded that there can never be a deviation from the Guides. In Guzman, the WCJ incorrectly concluded the physician cannot use his or her independent judgment to arrive at an impairment rating not specifically called for by the AMA Guides.