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Keyword: ‘Almaraz/Guzman – the howling in the night (Part I’

Almaraz/Guzman – the howling in the night (Part II)

Last time we covered the state of the law – specifically the state of Almaraz/Guzman and the wiggle room given to evaluating physicians to increase the whole person impairment.   Is there nothing that can be done to curb the inflation of permanent disability?  As a matter of fact, there is.

Your typical Almaraz/Guzman medical report reads something like this:  “The applicant underwent a partial medial and lateral meniscectomy.  Utilizing Table 17-33, this is a 4% whole person impairment.  Taking into consideration the Almaraz/Guzman case, noting his symptoms, Table 15-6 should be used and I would assign him an additional 9% whole person impairment.”

The rating just went from an unadjusted $2,760.50 in permanent disability indemnity to an unadjusted $9,717.50.  Factoring in profession, age, etc. the ratings can go drastically up.  Often enough, these ratings are combined as expressly prohibited by the AMA Guides.  So what’s the solution?

Milpitas Unified School District v. WCAB (Guzman III) (2010) 187 Cal.App.4th 808 pricks the ever-inflating whole person impairment balloon.  According to Guzman III, an evaluating physician can only deviate from the AMA Guides in “complex or extraordinary cases.”  These are cases that are “new or complex … or the range, evolution, and discovery of new medical conditions.”

In terms of actually performing an Almaraz/Guzman increase, simply invoking the name Almaraz/Guzman is not enough.  Guzman III holds that “[i]n 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.”

In other words, when you’re faced with an Almaraz/Guzman rating, ask yourself the following questions:

1)      Did the evaluating physician describe a condition that is “complex or extraordinary,” and one that deals with a “new or complex case” dealing with the “range, evolution, and discovery of new medical conditions?”  If the answer is no, then the impairment rating as increased by the non-strict application of the guides is not substantial evidence.

2)      Did the evaluating physician “explain why departure from the impairment percentages is necessary?”  If Dr. Ouch! simply says it is based on his experience, then the portions of the report addressing Almaraz/Guzman increases are not substantial evidence.

If one, or both, of those questions is answered in the negative, then the report should proceed on strict AMA Guides ratings only.

This argument was used successfully in a recent unpublished panel decision, where the WCAB held that “the AME has not adequately explained his use of [the tables] for spinal impairment for station and gate disorders, where the Guide specifically states that gait derangement impairment is not to be combined with a Diagnosis Based Estimate method.”

The Almaraz/Guzman increase-happy report can be whittled down, and this is how you do it.

In the near future, I’ll discuss how you can use the arguments to permanently shave off the Almaraz/Guzman increases.  But that is a post for another time.  Good hunting!

Almaraz/Guzman – the howling in the night (Part I)

So there’s the bad news and the not as bad news.  First, the bad news.

Circling the wagons against the Wild West of permanent disability and waiting for the Court of Appeals cavalry, hoping  for a reversal against the ravages of Almaraz/Guzman, is no longer an option.  The sun has set, no Cavalry bugle will sound, and the latest appeal of Almaraz/Guzman had dried up.  Almaraz has at last received closure from the 5th Appellate District.

The reforms of SB – 899 brought several changes to the California Workers’ Compensation system, most of them very good.  Among those reforms was the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or the Guides, for short), at least according to Labor Code § 4660.  As enacted, there would be one set rule for rating and appraising permanent disability, making Workers’ Compensation liability consistent, uniform, and objective, as called for by Labor Code § 4660.  That was the dream that drew our wagons out West to begin with.  Then, came the troubles…

The joint cases of Almaraz/Guzman, to some extent, did away with this portion of the reform, and brought back the uncertainty that ruled pre-SB 899.  Almaraz/Guzman seized upon the language of § 4660(c), specifically the fact that “[the AMA Guides] … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”  (Almaraz v. Environmental Recovery Services (2009) 74 Cal. Comp. Cas 1084).

According to Almaraz, and its companion case, Guzman v. Milpitas Unified School District, the AMA guides, contrary to the call for “consistency, uniformity, and objectivity” can be twisted and turned to suit the vagaries of “fairness” and “equity,” inflating the whole person impairment rating and exhausting insurance reserves.

Before a series of appeals chipped away at this decision, the only limitation (like limiting a child to all the cookies in the cookie jar), was that the evaluating physician had to remain within the four corners of the AMA Guides, in order to “adequately” evaluate the applicant’s impairment.

So where are we now?  Well, on the final round of appeals, Almaraz and Guzman split off.  While Guzman went on to produce the Guzman III opinion (more on this later), Almaraz is done with.

The bad news is that Almaraz is, for now, the law of the land – evaluating physicians can use any part of the AMA guides to evaluate the impairments of the applicant.  This means using charts for the spine to provide an impairment degree for the knee, combining methods of measuring impairments such as grip loss and range of motion loss (specifically prohibited by the Guides), and whatever else appeals to the doctor’s (and the persuasive letters of the applicant’s attorney) sense of judgment.

Left at that, self-insured employers and insurance companies rightly fear the Almaraz beast that stalks the night – by day, an ordinary man; under the full moon the monster that ravages the country-side of Workers’ Compensation.  Fortunately, there is a silver lining (or a silver bullet?)

What’s the less-bad news?  While Almaraz lets evaluators loose on Workers’ Compensation defendants, Guzman reigns them in with a tight leash.  How to use this silver bullet on the charging Wolfman?  Stop by tomorrow, and you’ll see.