Workers' Compensation

California: The Cannon Case: Permanent Objective Medical Diagnosis

Throughout the years, since the enactment of SB 899, all of the guidebooks have directed physicians and attorneys to focus on permanent objective medical conditions in order to determine whether that condition is ratable under the AMA Guides.  Some people interpret the AMA Guides to stand for the proposition that if a medical condition does not have permanent objective medical findings, then it cannot be rated at all.  It took only 10 years for the appellate courts to tell us that this proposition is wrong.  In January 2014, the Court of Appeal, Third Appellate District, issued its published decision in City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) [(2013) 222 Cal. App. 4th 1360, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1] indicating two important points that apply in our cases.

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The first point from the court in Cannon is that permanent objective medical findings such as seen on an MRI, CT, X-ray scans or other diagnostic studies are not necessarily required in order to provide a WPI rating for a medical condition under the AMA Guides. The second point is that using an alternative rating method to calculate a WPI rating in a given case is not limited to cases that are complex or extraordinary [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1366-1372, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

In Cannon, a police officer complained of pain to his left heel and foot, especially with weight-bearing activities including running.  He reported his condition and saw a physician.  The physical exam revealed some slight tenderness around the officer’s heel, and the primary treating physician diagnosed mild plantar fasciitis.  An AME, who was utilized in the case, wrote in his report after finding the officer MMI that he was “unable to offer any impairment from a strict interpretation of the AMA Guides 5th Edition” because “other than some tenderness, no objective abnormalities were identifiable” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1364-1365, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

The AME also wrote in pertinent part: “[H]eel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities.”  However, the physician concluded that the officer was precluded from such things as prolonged running [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1365, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

Not happy with the AME’s 0% WPI rating, the officer’s attorney wrote a letter to the doctor strongly suggesting that this case should be rated for permanent impairment.  The doctor then wrote a supplemental report that said this case is ratable “using a gait derangement abnormality” based on AMA Guides Table 17-5, page 529 because the officer’s condition is analogous to having “a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to a 7% whole person impairment” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1365, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

Can a primary treating or evaluating physician assign a WPI rating in a case that has no permanent objective findings and the medical condition is not listed in the AMA Guides 5th Edition?  Since plantar fasciitis is not a listed medical condition in the AMA Guides, was the physician’s rating in Cannon proper and did it constitute substantial evidence?  Is it proper to rate this case based on the principles enunciated by the Sixth DCA in Almaraz-Guzman III [see Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837]? Is this a “complex and extraordinary case”?

The court in Cannon said:  “There is nothing in the 2004 amendment to section 4660 that precludes a finding of impairment based on subjective complaints of pain where no objective abnormalities are found” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1371, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

The court quoted and reiterated the Sixth DCA in Almaraz-Guzman III that Labor Code Section 4660 does not require strict compliance with or mechanical application of the AMA Guides, and the key in every case is for a treating or evaluating physician to find the most accurate WPI rating within the four corners of the AMA Guides 5th Edition [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1368, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

On the issue of whether the principles in Almaraz-Guzman III apply only in complex and extraordinary cases, the court in Cannon said that the Sixth DCA was “using the term ‘complex or extraordinary cases’ to describe ‘syndromes that are ‘poorly understood and are manifested only by subjective symptoms’’ which the AMA Guides do not, and cannot, rate” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1372, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

A case does not have to be “complex” or “extraordinary” for Almaraz-Guzman III to apply—the physician must find the most accurate WPI rating based on his or her clinical judgment, expertise, knowledge, skill and education [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1372, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

It is about “accuracy” and not about how complex or extraordinary a case may be.  Plantar fasciitis, as Cannon’s condition, “appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides ‘calls for the physician’s exercise of clinical judgment to assess the impairment most accurately’” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1372, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

The court in Cannon then says:  “Dr. Ramsey performed that assessment here and determined that Cannon’s plantar fasciitis resulted in a 7 percent whole person impairment equivalent to a limp with arthritis” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1372, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

COMMENTARY: The Cannon case creates a new method of rating medical conditions that are not listed in the AMA Guides by way of an “Objective Medical Diagnosis”, which is not the same thing as a permanent objective medical finding.  An “Objective Medical Diagnosis” is a medical condition that has consistent and identifiable signs, symptoms, and complaints and has nationally accepted diagnostic criteria but by definition does not have any permanent objective medical findings such as from diagnostic imaging studies or other objective testing methods.  Examples of these accepted medical conditions include but are not limited to:

> Plantar fasciitis

> Fibromyalgia

> Epicondylitis (not operated)

> Costrochondritis

> Headaches

> Iliotibial band tendonitis

> Trochanteric bursitis

> Recurrent DRE I lumbar, thoracic, or cervical spine “sprain”

> Chronic pain syndromes with the absence of tissue damage

Also, you must remember that the court in Almaraz-Guzman III specifically pointed out that diagnostic criteria for medical conditions have changed since 2000 when the 5th Edition of the AMA Guides was first published.  In fact, the diagnostic criteria for complex regional pain syndrome changed in 2006 by the International Association of the Study of Pain [see The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 3, § 3.13 (Chronic Pain Syndrome)]. The court in Almaraz-Guzman III allows for contemporary diagnostic criteria to be used and then the treating or evaluating physician must use the four corners of the AMA Guides to determine the most accurate WPI rating.

The court in Cannon has created a step-by-step analysis by physicians and attorneys to determine proper application of the principles enunciated by the Sixth DCA in Almaraz-Guzman III to include:

1. What are the permanent objective medical findings? This is based on diagnostic tests, findings on exam such as ROM, muscle weakness, operative reports.

2. What is the strict WPI rating?

3. State whether the strict rating accurately reflects the IW’s disability with respect to ADL functioning (Table 1-2).

4. If the WPI strict rating is not accurate, state why it is not accurate.

5. If there is no strict WPI rating, the physician must say so and why (e.g., The medical condition is not mentioned in the Guides; there are no permanent objective medical findings that accompanies the diagnosis).

6. If there is an objective medical diagnosis but it is not listed in the Guides, what is the diagnosis and is it recognized in the medical community as a legitimate medical condition with nationally recognized standards of diagnostic criteria?

7. For either inaccurate strict WPI ratings or for objective medical diagnoses, the physician then can describe an analogous WPI rating using any chapter, table, or method listed in the AMA Guides 5th Edition (functional loss, anatomic or diagnosis based).

8. The physician then explains the rationale for the doctor’s conclusions.

9. Are the physician’s conclusions based on reasonable medical probability?

The court in Cannon quoted the AMA Guides, which mandates that a physician evaluate the effect of a medical condition on the person’s functioning:  “The physician’s role in performing an impairment evaluation is to provide an independent, unbiased assessment of the individual’s medical condition, including its effect on function, and identify abilities and limitations to performing activities of daily living . . .” [see City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal. App. 4th 1360, 1369, 167 Cal. Rptr. 3d 1, 79 Cal. Comp. Cases 1].

© Copyright 2014 LexisNexis. All rights reserved. This article was excerpted from The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, 2015 Edition (to be published late December 2014).