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In Ramirez v. Space Lok, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 9 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 9 (Lexis Advance), the WCAB rescinded the WCJ’s finding that the applicant, a machine operator, incurred 36 percent permanent disability as a result of a 7/23/2012 industrial injury to his left shoulder, left wrist, left thumb, neck, and psyche, and held instead that the applicant’s injuries caused 51 percent permanent disability in accordance with the opinion of the panel QME, Dr. Clive Segil.
Dr. Segil rejected the strict AMA Guides whole person impairment (WPI) of 1 percent for the applicant’s left thumb and found 18 percent WPI based on the applicant’s loss of grip strength.
The WCAB concluded that, because Dr. Segil found 18 percent WPI utilizing the four corners of the AMA Guides, it was error for the WCJ to instruct the rater to use a 1 percent WPI. Furthermore, Dr. Segil’s reporting was sufficient to rebut the strict AMA Guides WPI pursuant to the principles in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (lexis.com), 74 Cal. Comp. Cases 1084 (Lexis Advance) (Appeals Board en banc opinion), and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837 (lexis.com), 75 Cal. Comp. Cases 837 (Lexis Advance), as Dr. Segil adequately explained that the applicant’s disability was best described by the grip loss due to the extent of thumb disfigurement following surgery and the serious joint problem.
COMMENTARY BY ROBERT G. RASSP, ESQ.:
This case is an interesting disagreement between the WCJ and the WCAB panel on how a physician can provide the most accurate WPI rating. In this case, the PQME failed to provide a strict rating for the severely injured thumb in his report. Instead, he concluded that grip loss is the most accurate because of the applicant’s two thumb surgeries and the disfigurement from them. At his deposition, the PQME gave a strict 1% WPI rating, probably based on loss of motion of the injured thumb.
In his Report and Recommendation on Petition for Reconsideration, the WCJ properly provided the order of analysis by a physician to obtain the most accurate WPI ratings: (1) doctor gives a strict rating, citing the chapter, tables, and measurements in the AMA Guides, (2) states the facts of the patient’s condition that requires the doctor deviate from the strict rating, (3) provides an analysis as to how the doctor arrived at the alternative rating, (4) provides and analysis as to why the departure from the strict rating to the alternative rating is more accurate, and (5) states whether the doctor’s conclusion is based on reasonable medical probability.
The WCAB panel reviewed the case law, including Milpitas USD v. WCAB (Guzman) (2010) 75 Cal. Comp. Cases 837 and Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (lexis.com), 75 Cal. Comp. Cases 613 (Lexis Advance) (WCAB en banc). The panel indicates that the case law allows a physician to deviate from strict ratings but the emphasis is for a physician’s conclusions to constitute substantial medical evidence. Implied in this WCAB panel decision is that all a physician has to do is indicate in an MMI report that based on a review of the objective findings, diagnosis, and physical examination of the injured employee, a final rating is the most accurate even if no strict rating is provided to begin with. Despite this WCAB panel decision, physicians should follow the WCJ’s instructions above in every case, even if the strict rating is 1%, 0%, or any other percent and the physician believes an alternative WPI rating is more accurate.
The other take-away of this case is that the WCAB did not receive an Answer from the defendant. Counsel should always file an answer to opposing counsel’s Petition for Reconsideration, with absolutely no exceptions. Regardless of whether you represent the injured worker or defendant, your representation of your client includes a duty to respond to a Petition for Reconsideration.
Read the Ramirez noteworthy panel decision.
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