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Recently I had the pleasure of speaking to a large QME training course, sponsored by the California Orthopedic Association. Joined by WCJ Noah Tempkin and defense attorney William Tappin, the focus of my segment of the training panel, held at Orange County’s Ritz-Carlton Resort at Laguna Niguel, was on “Almaraz/Guzman: What Works and What Doesn’t Work?”

Transport yourself back to 2009. Here’s a quick history of Almaraz/Guzman.

In a 2009 en banc decision the WCAB issued an expansive opinion in the Almaraz and the Guzman cases allowing rebuttal of a strict AMA Guides rating even if only partially based on the AMA Guides. Ratings could be rebutted if they were inequitable, disproportionate, and not fair and accurate.

This caused quite a stir.

But judges do sometimes change their minds. And so the WCAB pulled back, greatly modifying its ruling, issuing the Almaraz/Guzman II en banc. It was no longer permissible to rebut the strict AMA rating by going outside the AMA Guides, but physicians could use the complete AMA Guides, including Chapters 1 and 2. The standard was now accuracy, and the inequitable, dispproportionate and “not fair” criteria was rejected.

And so the case went up to the Court of Appeals, 6th District. In 2010 the 6th DCA, in the Guzman case, essentially endorsed the WCAB’s approach in “A-G II” (a writ was denied in Almaraz) The court noted that the Guides cannot anticipate and describe every impairment, that the Guides are “consensus derived estimates” with some percentages supported by limited research data, and that the Guides can’t rate syndromes that are “poorly understood” or “manifested only by subjective symptoms”. Physicians can use experience and clinical judgment to rebut the Guides and to accommodate “complex or extraordinary cases”. Unreasonable departures from the Guides can be challenged. Physicians must explain how and why they depart from the AMA whole person impairment.

For several years what followed was a fairly large volume of appeals over whether a physician’s opinion using an A-G rebuttal passed muster as a viable rebuttal or failed. Looking at the WCAB panel decisions it appears that perhaps half of the time A-G formulations were upheld and half of the time rejected.

Surprisingly, only one post-Guzman case made it to the Court of Appeal, City of Sacramento v. WCAB (Cannon)(2013).

In Cannon the claimant was a police officer who had work-related plantar fasciitis. The PTP found no impaired activities of daily living and that he could work, though he did have difficulty with prolonged running. There were no objectives but subjectives affected weight bearing. A strict AMA Guides rating would have been 0% WPI, but the AME gave a 7% rating using Table 17-5 of the Guides. The trial judge disallowed the rebuttal rating, but the WCAB panel on reconsideration reversed, allowing it. And on appeal the employer argued that the rating was improper on two grounds: first, that it was based on subjective complaints only, and second, that plantar fasciitis was not complex or extraordinary.

The Court of Appeals 3rd District rejected both arguments, relying on the 6th DCA opinion in Guzman, noting that the term “complex or extraordinary cases” described cases such as plantar fasciitis that are manifested by subjective experience of pain.

Cannon clearly rejects a narrow interpretation of the Almaraz/Guzman doctrine. And Cannon may well call into question a number of pre-2013 cases where various WCAB panels rejected A-G formulations.

Our QME training at Laguna Niguel focused on many of those pre-and post-Cannon panel decisions involving spine, knee, shoulder and upper extremity injuries. Common A-G rebuttal strategies included use of Figure 15-19 (regions of the spine), analogies to the hernia tables, use of gait derangement Tables 17-5 and 13-5, functional loss arguments, DRE vs. ROM arguments , corticospinal analogies, use of Table 13-22 for upper extremities, grip loss ratings, analogies to amputations, medication effects analysis, and adding impairments vs. using the Combined Values Chart (i.e.the Kite case).

I noted that it is hard to come to definitive conclusions about whether some of these A-G rebuttal strategies will be upheld or rejected. Almaraz-Guzman panel decisions can seem inconsistent and have no precedential value. Also limiting their application are the following:

-WCAB commissioners rotate panels and many of the A-G panel decisions are from commissioners no longer on the WCAB or were written pre-Cannon

-panel decisions are not widely circulated and are often written in ways that don’t explain the underlying medical facts very well or don’t show the full physician’s A-G rebuttal analysis that was attempted

-whether a particular rebuttal method was allowed may depend on the quality of the physician’s analysis re the how and why rebuttal was undertaken, so it is hard to conclude that a particular method is or is not OK

-as we have gotten further in time from the Guzman and Cannon decisions, there seem to be less panel decisions addressing A-G issues; this may indicate that the parties have learned how to resolve these cases or that physicians are writing reports that tend to be more A-G compliant

Afterwards, several doctors came up to me and expressed frustration that it is hard for them to know if they are writing reports which are followed by the trial judges and WCAB commissioners. After the report leaves his or her hands the physician commonly receives little feedback and has no way of knowing the final case disposition.

Many were interested to hear what other doctors were doing and how it turned out in some of the examples.

The moral is that training doctors who evaluate cases is an important element of the California workers’ comp system. It’s good to be playing a small part in helping with that task.

Stay tuned.

Julius Young

www.workerscompzone.com

www.boxerlaw.com

 

 

 

 

Julius Young

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