"REFORMING" THE REFORM: ALMARAZ/GUZMAN
The 2005 Permanent Disability Rating Schedule utilizes the AMA Guides, 5th Edition to rate injury impairment. Often this results in substantially decreased permanent disability (PD) awards for serious injuries when compared to awards under the 1997 Schedule. Thus, the applicant's bar has argued that methods other than the AMA Guides may be used to rate impairment.
In Almaraz v. Environmental Recovery Services; Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 201 (en banc dec.), (hereafter "Almaraz"), the WCAB granted the wish of the applicant's bar, holding that the AMA Guides portion of the 2005 Schedule is rebuttable.
How is an AMA Guides Impairment Rating Rebutted?
The WCAB held that the AMA Guides is rebutted if a PD award under the Guides is "inequitable, disproportionate, and not a fair and accurate measure of employee's permanent disability." The trier of fact must make this determination on a case by case basis. For example, the Guides is rebutted if:
(1) an injury is not ratable under the Guides, such as an injury that has no permanent effect on "activities of daily living" but impacts work activity , or if an injury is not covered by AMA Guides. Examples are chemical reactions, skin sensitivity, or fibromyalgia; (i.e., impairment increased)
(2) the AMA Guides impairment results in an inequitably high PD award. Examples include injuries with minimal objective findings, if surveillance films show no activity loss, or some stress claims. (i.e., impairment decreased)
Evidence That May Be Presented To Rebut AMA Guides:
(1) Opinions of treating or evaluating physicians which are based on experience, training and skill. Physicians may:
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draw analogies to the Guides other chapters, tables, or methods of assessing impairment;
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consider other "generally accepted medical literature or criteria";
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consider the effect an injury has on the ability to perform work activities;
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consider vocational rehabilitation expert opinions.
(2) The physician must state his best opinion on the percentage of impairment, and explain the reasons for deviating from the AMA Guides. Such an opinion must constitute substantial evidence.
Determining Impairment Once AMA Guides Has Been Rebutted.
The WCAB is the ultimate trier-of-fact. A judge may accept a single physician's opinion, or make a decision based on a range of evidence. A PD Award cannot, however, be based on the old Schedule. Once a judge determines the standard impairment percentage, it is then plugged into rating formula.
Comment:
At the same time that the WCAB decided Almaraz, it held in Ogilivie v. City and County San Francisco that the Diminished Future Earning Capacity (DFEC) portion of the 2005 PD Schedule was also rebuttable if it does not adequately reflect an injury's impact on loss of earnings. Both Almaraz and Ogilivie sought to address alleged failures of the 2005 Schedule to reflect an injury's true impact on earning capacity. If both Almaraz and Ogilivie are applied to a case, working in concert they result in a "double dipping" effect on the PD: allowing doctors to increase PD to reflect an injury's impact on earning capacity, and then allowing the FEC rank to be increased in the next step of the PD rating to also reflect an injury's impact on loss of earnings. This is one of the many practical problems with the Almaraz and Ogilivie decisions.
It is anticipated that Almaraz will increase litigation, discovery, and settlement costs, and delay resolution of many cases. The greatest impact will be felt in serious orthopedic cases. On the defense side, defendants may seek to argue that psych impairments under the AMA Guides result in "inequitably" high PD awards.
Current Status:
On April 6, 2009, the WCAB issued an Order Granting Reconsideration and Allowing Amicus Briefs in Almaraz/Guzman and Ogilivie. The WCAB will re-hear its decisions, and may reverse or modify its opinions. However, no stay was granted. Thus, Almaraz must be followed for the time being, and it is expected Almaraz will continue to impact cases for two to three years, even if ultimately overruled on Appeal.
