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In the recent WCAB panel decision of Cannon v. City of Sacramento, (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 615 [2012 Cal. Wrk. Comp. P.D. LEXIS 615], the WCAB Commissioners analyzed and answered two key questions:
1. Are AMA Guides rebuttal cases limited to injuries that are “complex or extraordinary”?
2. How does an evaluating physician determine the whole person impairment (WPI) of an injury such as plantar fasciitis that is not listed in the AMA Guides?
I. Summary of Facts:
The Cannon case deals with a police officer who sustained an admitted industrial injury to his left foot in the form of plantar fasciitis, a very painful condition, given his particular job duties.
Initially, the AME indicated a 0% WPI since the AMA Guides do not provide a scheduled metric to rate plantar fasciitis. However, in a supplemental report, the AME explained that an alternate WPI of 7% would be appropriate, with a rating by analogy to gait derangement as set forth in Table 17-5 of the AMA Guides.
At trial, Officer Cannon testified that his plantar fasciitis condition caused him a significant degree of pain, especially when running. In addition, he testified that he did “have a noticeable limp when he is not wearing his shoe insert…” and that his activities were limited due to the industrial foot injury.
The Workers’ Compensation Judge (WCJ) found no permanent disability (PD) based on the initial determinations of zero percent (0%) WPI by both the AME (Dr. Ramsey) and the primary treating physician (PTP) (Dr. Wiggins).
The WCAB considered the injured worker’s testimony and the supplemental report from the AME and determined that the WPI should have been 7%, rather than 0%. They returned the matter to the trial level for a new decision consistent with the AME’s revised determination.
II. “Complex or Extraordinary Cases”:
When the 6th DCA issued their decision in Milpitas Unified School District v. WCAB (Guzman), (2010) 187 Cal. App. 4th 808, 75 Cal Comp Cases 837 [75 Cal. Comp. Cases 837], practitioners were concerned that language contained therein might limit the ability of parties to propose alternative PD ratings. The two phrases of particular concern were limitations to “new or complex conditions” and “complex or extraordinary cases.” The suggestion was that alternative ratings could only apply to “complex or extraordinary cases” when evaluating “new or complex conditions,” pursuant to the specific language in the Guzman case.
This was the position of defendant in the Cannon case. Defendant argued that the strict rating of 0% WPI per the AMA Guides was the appropriate rating, since an alternative rating was only possible in “complex or extraordinary” cases and plantar fasciitis was neither complex nor extraordinary.
In rejecting defendant’s argument, the WCAB interpreted and relied on the following language from Guzman:
The (Guzman) court further noted that the Guides, while providing a “framework for evaluating new or complex conditions” do not provide a rating for every impairment and cannot rate syndromes that are “poorly understood and are manifested only by subjective symptoms…”
The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. “To accommodate those complex or extraordinary cases, the Guides calls for the physician's exercise of clinical judgment to assess the impairment most accurately…” Emphasis added. (Milpitas Unified School District v. WCAB (Guzman), (2010) 75 Cal Comp Cases 837, at p. 855.)
The WCAB then explained, “Rather than further restrict a physician's expertise, this language should be read to reflect the ability of a physician to rate an impairment by analogy, within the four corners of the Guides, where a strict application of the Guides does not accurately reflect the impairment being assessed.” (Cannon, supra)
The WCAB decidedly rejected the notion that in order to rebut a strict rating of the AMA Guides, the underlying case must be “complex or extraordinary.” Although not cited by the WCAB in Cannon, this holding is consistent with the 6th DCA writ denied decision of River Front Apartments v. WCAB (Oliveira), 76 Cal Comp Cases 1099 [76 Cal. Comp. Cases 1099] (see panel decision reported at 2011 Cal. Wrk. Comp. P.D. LEXIS 133 [2011 Cal. Wrk. Comp. P.D. LEXIS 133]).
In Oliveira, supra, the WCJ determined that 19% PD was the most accurate rating for the applicant’s shoulder injury, based on a Guzman alternative rating using the “hernia table” (Table 6-9) of the AMA Guides. The WCJ further held that the underlying condition did not need to be “new or complex” as argued by defense, to qualify for the modified rating. The WCJ explained that although the term “new or complex” was used in the Guzman case, rebuttal cases should not be limited only to those cases that were considered “new or complex” as follows:
The Defendant contends that the application of an analogous WPI must only be in those situations where the condition is a "new or complex condition.” This ignores the language cited above from the Almaraz-Guzman II decision which requires the Guides be subordinated to the informed clinical judgment of the evaluating physician. His determination cannot be arbitrary but must be based upon the clinical and diagnostic condition presented by the injured worker. Certainly, there are clinical outcomes such as this which do not fall within the "neat" and "strict" application of the AMA Guides. This WCJ's opinion or the defendant's opinion that this is a "run of the mill" shoulder injury is not determinative of whether the analogous WPI is a more accurate description of the worker's impairment. Rather, the physician's clinical opinion and the reasons he gives for that decision are paramount in these situations in determining whether the analogous WPI is a more accurate description of the injured worker's impairment. The evaluating physician has accomplished that result in this instance. (Oliveira, supra)
The WCAB apparently felt that the AME in the Cannon case had accomplished that result as well. They decided that the issue for trial should be whether the evaluating physician’s alternative rating constitutes substantial evidence, rather than whether the case was “new,” “complex” or “extraordinary.”
III. Rating of Unscheduled Conditions:
The second issue addressed by the WCAB in the Cannon case was the mechanics of rating an unscheduled condition. Was it possible to provide a WPI for a condition that was not listed in the AMA Guides, such as plantar fasciitis? If so, how would a physician determine that WPI?
As stated in the above-cited language from Guzman, the drafters of the AMA Guides realized the Guides were not all inclusive. Under circumstances when impairments were not listed, the evaluating physician was then mandated to use his clinical judgment and expertise to determine a WPI utilizing metrics within the “four corners” of the Guides.
In Cannon, the injured worker had an admitted work related condition of plantar fasciitis. This condition permanently impacted his work activities. He was no longer assigned to bicycle patrol due to his condition and he has problems with running and weight-bearing activities, a serious issue for a police officer.
As a result, the injured worker in this case had a permanent disability due to his industrially caused plantar fasciitis. Unfortunately, plantar fasciitis is one of those conditions referred to in the Guzman case which is not provided a specific metric in the AMA Guides. Therefore, using the instructions from Guzman for such situations, the evaluating physician must rate by analogy as follows:
The PDRS itself instructs physicians that if a particular impairment is not addressed by the AMA Guides, they "should use clinical judgment, comparing measurable impairment resulting from the unlisted objective medical condition to measurable impairment resulting from similar objective medical conditions with similar impairment of function in performing activities of daily living." 18 (PDRS, pp. 1–4.) (Milpitas Unified School District v. WCAB (Guzman), (2010) 75 Cal Comp Cases 837, at p. 856.)
That is exactly what the AME, Dr. Ramsey, did in his supplemental report. He reviewed the prior medical reports in the case. He made specific reference to the report of the podiatrist, Dr. Childers and his diagnosis of “left foot plantar fasciitis, and an acquired equinus or plantar flexion deformity of the left ankle.” He also considered several other reports documenting “plantar calcaneal spur,” and a spur at the Achilles tendon.
Most importantly, Dr. Ramsey thoroughly explained his use of Table 17-5 at p. 529 of the Guides to rate by analogy to gait derangement and to provide for a 7% WPI. Dr. Ramsey concluded his analysis with the following:
“This particular individual has a problem with pain in the heel of his foot that interferes with weight-bearing activities, particularly running, and I thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended.”
There are many examples in case law, where “gait derangement” is appropriately used to rebut a strict rating of AMA Guides. Extensive explanations for when “gait derangement” is and is not permissible can be found in the following cases:
· Western Towing v. WCAB, (Steward) (2012) 77 Cal Comp Cases 1159 [77 Cal. Comp. Cases 1159]
· Rodgers v. County of Sacramento, (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 449 [2011 Cal. Wrk. Comp. P.D. LEXIS 449]
· Fitzsimmons v. Scotts Jack London Seafood, (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 431 [2011 Cal. Wrk. Comp. P.D. LEXIS 431]
· Hudson v. EMG Children & Family Services, (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 434 [2011 Cal. Wrk. Comp. P.D. LEXIS 434]
The WCAB commissioners in the Cannon case found Dr. Ramsey’s analogy to gait derangement to be appropriate, accurate and constituting substantial evidence. On that basis, the case was returned to the trial level for a decision consistent with the Board’s opinion.
The take away for practitioners from the Cannon case is two-fold:
1. If an impairment is not listed in the Guides, the evaluating physician may provide a Guzman rebuttal rating, regardless of whether the case is “complex or extraordinary.”
2. If offering a rebuttal rating under Guzman, make sure the evaluating physician has thoroughly explained how and why the use of the alternative AMA Guides metric is the most accurate one to use for rating WPI. A one-line conclusion will not constitute substantial evidence.
© Copyright 2013 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter.