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As a result of the February 3, 2009, en banc decision in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 201 (Appeals Board en banc), the September 3, 2009 decision after reconsideration in Almaraz/Guzman (Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc) (Almaraz/Guzman II), and the Court of Appeal’s analysis in Milpitas Unified School District v. Workers’ Comp. Appeals Bd. (2010) 75 Cal. Comp. Cases 837, 839) it is now clear that a departure from a strict application of the AMA Guides is appropriate for cases that do not fit neatly into the diagnostic criteria and descriptions provided for by the Guides. As these cases established, a physician is to use clinical judgment in evaluating impairment even if that means resorting to comparable conditions described in the AMA Guides.
Typically, the physician will opine that the strict application of the Guides results in too low of a permanent disability and that a different description within the Guides more accurately reflects applicant’s true disability. However, in a case where all of the criteria are arguably met for two distinct impairments, can the QME choose the lower of the two impairments relying on the principles set forth in Almaraz/Guzman II?
In Gomez v. Castle & Cooke, Inc., a case involving a 2004 date of injury, applicant obtained a QME with Dr. Haronian and defendant obtained a QME with Dr. Sanders. After trial, the Workers’ Compensation Administrative Law Judge (ALJ) opined:
The classification of Applicant’s spinal condition within Group III of the Lumbar Spinal Diagnosis Related Group (DRG) with 8% whole person impairment by Dr. Sanders is most likely correct…The contrary view of Dr. Haronian, that Applicant is within DRG Category V, assumes on-going radiculopathy which is inconsistent with the updated nerve conduction testing.
On Reconsideration, the applicant contended that the WCJ erred in relying on the defense QME. In a split decision, the majority of a panel of commissioners upheld the WCJ’s reliance on Dr. Sanders. More interesting, however, was the dissenting opinion by new commissioner Marguerite Sweeney.
In her dissent, Commissioner Sweeney indicated that she would have granted reconsideration and would have found that Dr. Sanders’ reports were not substantial medical evidence and that the applicant sustained permanent disability in accordance with the medical reporting of Dr. Haronian. She first noted that prior to the time applicant had undergone two surgeries, including an artificial disc replacement, Dr. Sanders had found that applicant suffered a restricted range of motion. Subsequently, she noted, not commenting on the restricted range of motion, Dr. Sanders indicated that applicant belonged in a DRE Category III.
In contrast, she observed, applicant’s QME. Dr. Haronian, found evidence of continued radiculopathy based on the neurodiagnostic studies, found evidence of an alteration of motion segment integrity and based on this, placed applicant in a DRE Category V. She further noted that in a supplemental report, Dr. Haronian observed that applicant had undergone a lumbar arthrodesis and that his decision to place applicant in a DRE Category V was a “relatively straightforward decision” based on these findings.
As pointed out by Commissioner Sweeney, according to the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition), DRE category III is appropriate if the patient shows significant signs of radiculopathy or has a history of a herniated disk. (AMA Guides, p. 384, Table 15-3.) DRE category IV is appropriate if the patient has “[l]oss of motion segment integrity defined from flexion and extension radiographs as at least 4.5 mm of translation of one vertebra on another or angular motion greater than 15° at L1-2, L2-3, and L3-4, greater than 20° at L4-5 and greater than 25° at L5-S1 (figure 15-3): may have complete or near complete loss of motion of a motion segment due to developmental fusion or successful or unsuccessful attempt at surgical arthrodesis.” (Ibid.) It further states that DRE category V is appropriate if the patient meets the criteria of DRE category III and category IV. (Ibid.)
After a very thorough analysis of what constitutes substantial medical evidence of whole person impairment under the AMA Guides as well as Almaraz/Guzman II, Commissioner Sweeney noted:
In this case, both Dr. Sanders and Dr. Haronian agree, albeit for different reasons, that the applicant meets the diagnostic criteria for DRE category III. Dr. Haronian found that the applicant had alteration of motion segment integrity as a result of artificial disk replacement surgery warranting placement in DRE category V. Dr. Sanders did not provide a discussion of whether applicant had loss of motion. Although disk replacement surgery does not automatically result in loss of motion as a fusion operation would, Dr. Sanders should have considered and discussed the surgery in conjunction with potential loss of motion. Given applicant’s diagnoses, surgical history, and treating physician reports documenting loss of motion, some discussion of loss of motion (or lack thereof) is necessary in order to determine whether the WPI assigned by Dr. Sanders is consistent with the AMA Guides.
She concluded that although the WCJ extensively discussed Almaraz/Guzman II in his report, this case turned on a strict application of the AMA Guides. She pointed out that although Dr. Sanders did not attempt to deviate from the AMA Guides’ preferred method for rating applicant’s disability, he failed to adequately discuss and consider applicant’s loss of motion. Assuming Dr. Sanders meant to analogize applicant’s disability to a DRE category III, she stated, he did not provide any analysis or reasoning to justify his departure from a strict application of the AMA Guides methodology as required by Almaraz/Guzman II.
This case highlights that whether the permanent disability is based on a strict application of the AMA Guides or the methodology allowed by Almaraz/Guzman II, the bottom line in these cases continues to be whether the expert’s opinion that is being relied upon constitutes substantial evidence.
As discussed in Gomez, though theoretically the QME could invoke Almaraz/Guzman II in finding a lower impairment, as with an analogy to a higher impairment, the QME must still constitute substantial evidence and set forth the reasons why the lower impairment is being utilized.
© Copyright 2012 LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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This is an interesting case. There is actually a panel opinion out there (Riley v. City of Pasadena) where the AME used Almaraz/Guzman to lower the rating reasoning that applicant was not showing enough impairment to justify a WPI rating of 24%. Here is a summary: http://wcdefenseca.wordpress.com/2011/07/01/when-the-almaraz-shoe-is-on-the-other-foot/