California Sixth Appellate District Affirms WCAB Decision in Guzman v. Milpitas School District

In a 28 page opinion, the California Sixth Appellate District has affirmed the WCAB decision regarding use of any chapter, table or page in the AMA Guides Fifth Edition to appropriately assess permanent impairment.

While this decision will appear to be a victory for Applicants, the Court of Appeals sets an encouragingly high standard for potential exploitation by the defense.

The following excerpt illustrates the court's approach.

"...the PDRS has expressly incorporated the entire Guides, which necessarily includes its instructions on the proper application of the chapters pertaining to each specific body area or system-notably, the authors' recommendation physicians use clinical judgment when a condition is not covered by the impairment ratings in the Guides.  The Board's decision is consistent with those instructions by acknowledging the necessity of the physician's exercise of "judgment, experience, training, and skill in assessing WPI."

At the same time, however, the WCAB majority did not explain how far the physician may go in relying on the "four corners" when the descriptions, tables, and percentages pertaining to an injury do not accurately describe the injured employee's impairment.  If the physician expresses the opinion that the chapter applicable to a particular kind of injury does not describe the employee's injury, but all other chapters address completely different biological systems or body parts, it would likely be difficult to demonstrate that alternative chapter supplies substantial, relevant evidence of an alternative WPI rating. In 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.  (Emphasis added - GMK) That explanation necessarily takes into account the physician's skill, knowledge, and experience, as well as other considerations unique to the injury at issue.  In our view, a physician's explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources.  The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence.  If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician's opinion will properly be rejected.  Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the trier of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment". (Emphasis added - GMK).

What this means for you

Too many physician reports are often lazy when it comes to explaining the methodology reached in the formulation of their opinions. This is the crux of the defense of the Guzman decision. Your defense counsel should be properly examining any deviation from the appropriate chapter and table of the Guides is being used under this Guzman decision by analogy. By supplemental report, by cross examination of the physician, or by trial brief, the defense can present convincing arguments that deviation from the AMA Guides requires meeting substantial thresholds that are not met by a casual reference to another chapter or table.

Goldman Magdalin and Krikes is ready to challenge any deviation from the strict application of the AMA Guides under this Guzman decision where appropriate, and argue on your behalf to minimize attempts by physicians to artificially inflate impairment otherwise provided for in the Guides

© Copyright 2010 Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.