The WCAB has issued en banc decisions opining that the AMA Guides are rebuttable, and that one method of rebutting a scheduled rating is to successfully challenge one of the component elements of that rating, such as the Whole Person Impairment (WPI) or the Functional Earnings Capacity (FEC).
The WCAB initially issued an en banc decision in Almaraz/Guzman I 74 CCC 201 (BEB-2009; reconsideration granted, 74 CCC 470 (2009)) that a rating of permanent disability based upon the AMA Guides may be rebutted if it was inequitable, disproportionate and not a fair and accurate measure of the employee’s actual level of disability. The employer sought reconsideration, which was granted, and the WCAB then issued Almaraz/Guzman II which upheld the general concept that the AMA Guides are rebuttable, but eliminated the rebuttal based upon inequitable or disproportionate rating. Instead, the WCAB held that a physician may use any methodology that most accurately reflects the injured worker’s impairment, however, that methodology must be contained within the four corners of the AMA Guides, Fifth edition, and must also constitute substantial evidence.
In Ogilvie I 74 CCC 248 (BEB – 2009, reconsideration granted, 74 CCC 478 (2009)), the WCAB issued another en banc decision that provided a mathematic formula, based upon actual or anticipated loss of earnings data, to adjust the Functional Earnings Capacity (FEC) variable when formulating permanent disability. Again, reconsideration was sought and granted by the WCAB, which issued a decision in Ogilvie II which, in essence, upheld the original decision in Ogilvie I, but clarified -perhaps for the sake of consistency - that the AMA Guide ratings of PD are rebuttable, and one method of rebutting the guides is to successfully challenge one or more of the component parts of the PD rating.
Previously, the case law was divided. Some decisions had taken a fairly literal interpretation of the AMA guides, requiring relatively strict adherence to the specific charts, tables, and rationale articulated within the AMA guides. In fact, many self proclaimed AMA experts would interpret AME reports and opine whether or not the medical legal examiner properly utilized and applied the AMA guides. Although the legislature, via SB 899, incorporated the AMA guides as a principal tool for measuring permanent disability, there also was a growing recognition of a disconnect between an AMA rating and the injured workers’ actual level of disability.
Prior to the Almaraz/Guzman I and II decisions, the WCAB upheld a broader interpretation of the AMA Guides in Hyatt Regency Hotel v. WCAB (Ross Foote), (2008) 73 CCC 524. In Foote, the applicant sustained career ending industrial injuries to his right elbow, left shoulder, right knee and right wrist. With regard to the right wrist, the AME opined that rating grip loss for his injury was appropriate. The DEU rater opined that grip reduction was not ratable under the AMA Guides. The WCJ ordered further development of the record. The AME opined that (1) the diagnosis for the right wrist was chronic epicondylitis; (2) there was objective evidence of impairment because of the prominence of the lateral epicondyle that was significant when compared with the contralateral, left side; and (3) this condition resulted in diminished grip strength. The AME opined that there were no other applicable provisions in the AMA guides to describe applicant’s residual impairment. The DEU rater opined that the grip loss was still not ratable according to the guides and should rate to zero. The WCJ allowed the rating of the grip loss which resulted in 30% PD.
The WCAB and the court of appeal upheld the WCJ’s decision to use grip loss to calculate PD even though a strict reading of that portion of the AMA guides prohibit such a rating. Allowing a zero disability rating for an injured worker who has significant grip loss and is unable to resume his occupation contradicts the contention that the applicant’s condition has been adequately and specifically considered by the AMA guides. The Board held that the WCJ is not bound by the DEU rating if this would lead to a disability award that was not commensurate with the applicant’s disability. Nielson v. WCAB (1974) 36 Cal.App.3d 756 The WCJ analogized to the old schedule cases that held that even if the old PDRS did not specifically rate an injury, if it required a change of occupation, a 13% rating was recommended to represent a year of benefits to find another job. Fireman’s Fund v. WCAB (Belzner)(1973) 38 CCC 405; Kohlenberger v. WCAB (1978) 43 CCC 216; County Sanitation District of LA v. WCAB (Hall)(1977) 42 CCC 283. This case introduced the concept that one can analogize within the AMA guides to obtain a disability award that is commensurate with applicant’s true level of disability.
The WCAB has issued numerous prior decisions upholding the use and application of the AMA guides. However, in its en banc decision in Almaraz/Guzman II, the WCAB acknowledged that a literal interpretation of the AMA guides may be rebutted when other portions of the AMA Guides offer a more accurate measure of the injured workers’ actual level of impairment. And while there may still be great legal debate as to how and when to rebut the guides, and what actually constitutes a more accurate description of impairment, it would seem that there no longer is any value to obtaining the services of an “AMA expert.” These disputes will likely be resolved by the medical examiner and the trier-of-fact.
While it is likely that these decisions will be appealed again, because both Almaraz/Guzman II and Ogilvie II are en banc decisions, both decisions remain in effect and are binding on all workers’ compensation judges at this time. Diggle v. Sierra Sands Unified School District (2005) 70 Cal. Comp. Cases 1480 [The WCAB, in a significant panel decision, held that WCAB en banc decisions remain binding precedent on all WCAB panels and WCJs, pursuant to 8 Cal. Code Reg. § 10341, even though a petition for writ of review has been filed or writ of review has been granted. The WCAB held that Labor Code § 5956 compels this result unless and until either appellate court issues an opinion that explicitly or implicitly overrules the en banc decision or the appellate court stays or suspends the operation of the en banc decision prior to court's issuance of opinion.]
Mario Almaraz v. Environmental Recovery Service; Joyce Guzman v. Milpitas Unified School District II, 74 CCC 1084 (BEB-2009)The Almaraz/Guzman II decision is two consolidated cases where the WCAB broadly expanded the methodology for calculating permanent disability by holding that the AMA Guides are rebuttable. In a landmark case, the WCAB held that the AMA Guides are not strict texts to be literally and mechanically applied. Instead, the evaluating physician may use his or her experience and expertise to interpret and apply any portion of the entire AMA Guides, Fifth Edition. The new standard for calculating WPI is determining the most accurate reflection of impairment as measured by any chart, table, or methodology contained within the entire AMA Guides, Fifth Edition. The burden of rebutting a scheduled permanent disability rating rests with the party disputing it. Any rebuttal rating must constitute substantial evidence by being medically reasonable and explained.
SPECIFIC FACTS OF THE ALMARAZ/GUZMAN CASES
Almaraz – the injured worker was a truck driver with an admitted industrial low back injury. He underwent laminectomy and discectomy at L4-5. This was a career ending injury. Under the AMA guides, applicant was in a DRE category III, resulting in 12% WPI. However, the AME also indicated that the applicant was limited to light duty work and permanently precluded from prolonged sitting.
Guzman – the injured worker was a secretary who sustained admitted industrial injury to her bilateral upper extremities resulting in bilateral carpal tunnel syndrome. The AME found 3% WPI for each side using the AMA guides. However, the AME also opined that her injury caused a 25% loss of pre-injury capacity for pushing, pulling, grasping, gripping, keyboarding and fine manipulation. The AME also indicated that based upon her ADLs, each upper extremity would have a 15% WPI, although his methodology was not sanctioned by the AMA Guides.
In both cases, the trial judge used the literal AMA rating of WPI over the more liberal interpretation of the AME. In Almaraz/Guzman I, the WCAB held that the AMA Guides were rebuttable, and created an extremely broad methodology for rebutting the guides and calculating WPI. The WCAB then granted reconsideration on its own en banc decision, and issued Almaraz/Guzman II which maintained that the AMA Guides are rebuttable, but restricted the methodology and scope of the rebuttal. In Almaraz/Guzman II the WCAB found an increased rating of PD based upon the AME’s more liberal interpretation of the Guides, but remanded the matter back to the trial judge.
BACKGROUND, DEFINITION OF PERMANENT DISABILITY, IMPAIRMENT, ROLE OF THE GUIDES
PERMANENT DISABILITY: “’Permanent Disability is understood as “the irreversible residual of an injury.”’ Kopping v. WCAB (2006) 142 Cal.App.4th 1099, 1111 ‘A permanent disability is one “…which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.”’ SCIF v. IAC (Hutchinson)(1963) 59 Cal.2d 45, 52 Thus, permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earnings capacity.” LC §4660(a); Livitsanos v. Superior Court (1992) 2 Cal.4th 744; 753; Brodie v. WCAB (2007) 40 Cal.4th 1313, 1320
The 2005 PDRS is prima facie evidence of an injured employee’s percentage of permanent disability. According to the 2005 PDRS, permanent disability is based upon a rating of whole person impairment (calculated by either the AMA Guides or GAF for psyche injuries), which is then adjusted by the injured worker’s FEC, occupation and age. LC §4660(b)(1) states that the nature of the physical injury or disfigurement shall incorporate the descriptions and measurements of the AMA Guides. Thus, the WPI portion of the calculation of Permanent Disability must be calculated by using a metric contained within the AMA Guides, Fifth Edition.
IMPAIRMENT: The AMA Guides do not measure permanent disability, instead, they calculate whole person impairment. In evaluating impairment, the AMA Guides considers both anatomic and functional loss. Some chapters place a greater emphasis on either anatomic or functional loss, depending upon common practice in that area of practice. Whole Person Impairment (“WPI”) ratings are estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (ADLs), excluding work. AMA Guides, Fifth Edition, pg. 4.
The AMA Guides recognize that an injured employee’s impairment assessment is not necessarily limited to an evaluation of an injured employee’s “anatomic loss” (damage to an organ system or body structure) or “functional loss” (a change in function for an organ system or body structure). AMA Guides §1.2a, at pg. 4. Instead, a physician may assess how the industrial injury will affect the employee’s ability to return to his or her job. Other evidence may be appropriate – including the expert opinion of vocational specialists. AMA Guides, §1.9 at pg. 14, see also § 2.6a4, at pg. 21. The AMA guides calls for the evaluating physician to draw on his or her judgment and experience in reaching a determination regarding impairment.
Thus, while any WPI rating must be based upon the AMA Guides, any portion of the Guides may be used to calculate the most accurate rating of WPI.
THE AMA GUIDES ARE REBUTTABLE
An impairment rating strictly based on a scheduled AMA Guides rating may be rebutted by successfully challenging one of the component parts of a PD rating (WPI, FEC, Age or Occupation). The WCAB held that the language of LC § 4660(c) which provides “that the…schedule shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that a PD rating established by the Schedule is rebuttable. The very nature of “prima facie evidence” is that it is rebuttable. Had the legislature intended the AMA Guides to be irrebuttable, it would have used the language “conclusive.”
HOW TO REBUT THE AMA GUIDES
Although one can rebut the rating of PD by successfully challenging any of the rating components (WPI, FEC, age or occupation), Almaraz/Guzman II focused on rebutting the WPI portion of a PD rating. The WCAB held that a scheduled rating of the AMA Guides may be rebutted where some other chapter, table, or method contained within the AMA Guides, Fifth Edition, more accurately reflects the injured workers’ impairment. As usual, the devil is in the details. For the purposes of calculating WPI, the WCAB in Almaraz/Guzman II held that:
(1) The burden of rebutting a scheduled rating rests with the party disputing the rating;(2) The physician may not go outside the four corners of the AMA guides (Fifth Edition),(3) But the physician may use his or her own judgment, experience, training, and skill, to determine which table, chart or metric contained within any chapter or portion of the AMA Guides, Fifth Edition, most accurately reflects the injured employee’s impairment,(4) And the physician’s opinion must constitute substantial evidence by clearly explaining why any variation from a strict reading of a specific portion of the AMA Guides is appropriate and reasonable.
In essence, analogy to any other portion of the AMA Guides, Fifth Edition is permissible if it is reasonably explained.
EVIDENCE FOR REBUTTING THE GUIDES
The evaluating physician should first discuss the scheduled AMA impairment rating of WPI. If the evaluating physician believes that the rating is inaccurate, and a more accurate alternative exists within the Guides, that information should be addressed. In the alternative, once a scheduled AMA impairment rating issues, the objecting party should either seek a deposition or supplemental report. The WCAB has made clear that in most instances, all discovery to rebut a scheduled AMA impairment rating should occur prior to the MSC.
To rebut a scheduled AMA rating of Whole Person Impairment, the evaluating physician must (1) use some other metric contained in any part of the AMA Guides, Fifth Edition, to (2) more accurately reflect the injured worker’s actual level of impairment. To accomplish this, the evaluating physician has been given great discretion
It seems the WCAB struggled with the legislative mandate contained with LC 4660(d) of promoting consistency, uniformity and objectivity by incorporating the AMA Guides, with the actual language and philosophy contained within the first two chapters of the AMA Guides, Fifth Edition, that emphasize the need for the evaluating physician to use judgment and experience to interpret that Guides. Thus, the WCAB stated:
“Moreover, while the AMA Guides often sets forth an analytical framework and methods for a physician in assessing WPI, the Guides does not relegate a physician to the role of taking a few objective measurements and then mechanically and uncritically assigning a WPI that is based on a rigid and standardized protocol and that is devoid of any clinical judgment. Instead, the AMA Guides expressly contemplates that a physician will use his or her judgment, experience, training, and skill in assessing WPI.” Almaraz/Guzman II
The key question is what is meant by the most “accurate” reflection of impairment? There most likely will be liberal and conservative interpretations of this question. Since the AMA Guides already define impairment as both anatomic and functional loss, the evaluator will need to demonstrate that some other portion of the Guides better quantifies either the anatomic or functional loss. In some instances, the actual injury will not be specifically covered within the Guides. In some cases, there will be varying techniques to rate similar conditions. There may be internal rules that limit whether one or more method may be combined. One will look to whether there are other tests, measurements, or metrics within the Guides to better quantify the actual anatomic loss. One will look to whether other charts or tables better reflect the impact on activities of daily living. The physician may even seek to explain why a greater emphasis should be placed upon the anatomic or functional loss methodology.
Because the WCAB has made it explicitly clear that rebutting the Guides must be based upon substantial evidence, and not just a subjective tool for increasing or decreasing disability, the true test will be how well the evaluating physician explains his or her opinion. Referencing fairness, or economic loss (as mandated by Almaraz/Guzman I) is now out of favor. Instead, referencing why some other measurement is more accurate may win the day. At this time, there are myriads of opinions as to when and how scheduled AMA impairments may be rebutted. In time, sufficient case law will arise illustrating what methodologies are actually permissible.
RATING BY ANALOGY
By definition, rating by analogy means using something other than the scheduled methodology. Different tables, charts, or tables may provide reference to other conditions with similar anatomic or functional loss.
For upper and lower extremities, one could perhaps turn to the tables and charts within the Guides for amputation (Table 16-4, pg. 440 for upper extremity amputations, and Table 17-5, pg. 529 for lower extremity amputations). If one has sustained a partial loss of use or function of a limb or extremity, it may be analogized to similar portion of an amputation, e.g., 50% loss of use of a finger may analogize to 50% of the WPI assigned for an amputation of that finger. One might also turn to Table 13-15 (pg. 336) of the AMA Guides for impairment assigned to lower extremities, and to Table 13-16 (pg. 338) of the Guides for impairment of the upper extremities. For such an analogy, one might argue that the functional loss, i.e. impact on activities of daily living, may be better reflected by a partial amputation. For the wrists and hands, grip loss may be used if appropriate.
With regard to the back or spine, perhaps the ROM method may be more appropriate than a DRE calculation. Or perhaps one would analogize to coronary heart disease or hernias. If the functional loss due to a spinal injury is significant enough to truly limit function, one might look at table 15-6 of the AMA Guides for analogies. These ratings for corticospinal tract impairment are added to an underlying DRE impairment rating.
For the lower extremities, one may be able to use combine methods normally prohibited under Table 17-2 on pg. 526 Guides if they provide a more accurate result. Although pg. 529 of the Guides informs us to avoid using the Gait Derangement method when possible, a more liberal application may now be appropriate. Again, analogizing to amputations or using the chart for total hip replacements (table 17-34 on pg. 548) may be more liberally utilized.
Pain has previously been limited to a 3% add-on. Under the more liberal rules of application espoused by Almaraz/Guzman, to the extent that the pain is disabling, perhaps greater impairment could be assigned. Perhaps one can analogize to table 13-22 on pg. 343 of the Guides which assigns impairment for chronic pain of one extremity.
Perhaps the only rule at this time are no bright line rules. For many cases, the unmodified AMA guidelines should be sufficient. But, where there is a clear disparity between the literal AMA rating and the actual disability of the injured worker, it is appropriate to analogize to other charts and tables with the AMA guides to determine a more accurate rating of impairment. To be successful, the medical legal examiner will have to be thorough in his or her analysis, and clearly articulate the methodology incorporated in analogizing or coming up with the new rating of impairment.
Finally, it is the WCAB, not the physician, that makes the final determination of PD. The WCAB may make any finding that is supported by substantial evidence when the record is viewed as a whole. Therefore the WCAB may accept the opinion of a single physician, or it may make a finding within the range of the medical evidence presented.
The physician’s estimate of the percentage of the employee’s impairment may be accepted even though this estimate is not exact, provided that the physician’s opinion is adequately explained and is based on the factors set forth above, including the physician’s judgment, experience, training and skill.
Once the WCAB has made its percentage impairment determination, then that percentage impairment figure is plugged into the rating formula of the 2005 PDRS in place of the AMA Guides percentage impairment, and is then adjusted accordingly.
Reduction of AMA Rating Using Almaraz/Guzman
The WCAB made it explicitly clear in Almaraz/Guzman II that AMA impairments may also be reduced if that would yield a more accurate reflection of impairment. However, there is no clear instruction as to how or when it is appropriate to reduce an AMA rating of impairment. The one example cited in Almaraz/Guzman I involved a finding of fraud, so it is unclear whether applicant’s untruthfulness resulted in whole or in part in the reduction of impairment assigned.
In California Workers’ Compensation, it is well established that permanent disability is designed to compensate the injured worker for both physical loss and the loss of some or all of their earnings capacity. Benson v. WCAB, 170 Cal.app.4th 1535 (2009), 74 CCC 113. Similarly, AMA impairment reflects both anatomic and functional loss. In most instances, it would seem difficult to argue that an actual scheduled anatomic loss is less accurate then some other description of anatomic loss. The mere fact that an injured worker has minimal to no loss of function (ADLs) will not necessarily result in a reduction of impairment. It is this lecturer’s opinion that AMA impairment may be increased by analogy when the actual impact on ADLs and function is not accurately reflected in a scheduled rating. However, where there is some actual anatomic loss that is reflected by the scheduled AMA rating, it would not be permissible to seek to reduce the AMA rating by analogy due to unimpaired function, because the anatomic portion of the rating remains viable and accurate. As a general rule, this attorney opines that a scheduled AMA rating should serve as a floor, not a ceiling. However, this topic will most likely be litigated and only further judicial or legislative clarification will answer this question.
OGILVIE - CALCULATING ACTUAL WAGE LOSS
The WCAB explicitly states that given the formula outlined in Ogilvie, in most cases, it will not be necessary to retain vocational experts to determine the injured workers’ actual wage loss, or the earnings capacity of his or her peer group. Unfortunately, there still may be many situations where vocational experts are required.
Where the injured worker has returned to his or her usual and customary job with no loss of earnings, there will probably be no need for an Ogilvie analysis. Or when the injured worker suffers an injury, and is either given a modified job or obtains different employment, it may be easy to calculate the injured workers’ actual earnings and that of his or her peer group. However, for many other situations, the data may be less reliable. An estimate of earning capacity “is a prediction of what an employee’s earnings would have been had he not been injured…[A] prediction [of earning capacity for purposes of permanent disability] is … complex because the compensation is for loss of earning power over a long span of time. … In making a permanent award, [reliance on an injured employee’s] earning history alone may be misleading. … [A]ll facts relevant and helpful to making the estimate bust be considered. The applicant’s ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant.” Argonaut Ins. Co. v IAC (Montana)(1962) 57 Cal.2d 589 at 594-595; 27 CCC 130, 133.
Where an injured worker loses his or her original job, but receives a pension, disability income, or some other source of income other than wages, it may be more difficult to calculate the injured workers’ true loss of earnings capacity. It is probable that neither pension income nor some source of disability income will be directly used in calculating wage loss (see collateral source doctrine below). However, the injured workers’ actual earned income after the injury may not accurately reflect his or her true earnings capacity if there is a substantial source of other income. Thus, a vocational expert may still be required to accurately estimate the injured worker’s true earnings capacity.
Collateral Source Doctrine – Pensions and Disability Income
In Civil litigation, there already is a substantial body of law precluding pension income or other collateral sources of income from being included in a calculation for loss of income. The “collateral source rule” has been stated as follows:
Where a person suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of the damages reduced by the receipt by him of payment for his loss from a source wholly independent of the wrongdoer.
Anheuser-Busch v. Starley (1946) 28 C.2d 347, 349, 170 P.2d 448; see De Cruz v. Reid (1968) 69 C.2d 217, 226, 70 C.R. 550, 444 P.2d 342, citing the text.
Collateral sources include insurance, pensions, continued wages, and disability payments. Helfend v. Southern Calif. Rapid Transit Dist. (1970) 2 C.3d 1, 14-15. The rule is applied to benefits for which plaintiff actually or constructively paid or where the collateral source would be reimbursed from a tort recovery. Id. at 6. The leading California Supreme Court case is Helfend v. Southern Calif. Rapid Transit Dist. (1970) 2 C.3d 1 full opinion posted at the California Official Reports page). In Helfend, the Court undertook an elaborate review of the nature, purpose, and scope of the rule, and answered the principal criticisms leveled at it by commentators.
The most basic rationale for the rule is that tortfeasors should not benefit based on Plaintiffs thrift and foresight in purchasing insurance or other obtaining supplemental sources of income in times of injury. To allow tortfeasors to benefit from the good judgment of the plaintiff both wrongly benefits the tortfeasor and discourages people from seeking out independent insurance and investment. Additionally, even where a double recovery is inevitable, the collateral source rule is still applicable. Philip Chang & Sons Associates v. La Casa Novato (1986) 177 C.A.3d 159, 222 C.R. 800 (full opinion posted at the California Official Reports page). The receipt of pension benefits cannot be used to reduce the amount of damages recoverable. Helfend v. Southern Calif. Rapid Transit Dist. (1970) 2 C.3d 1, 6. Even where the application of the collateral source rule to pension benefits results in a clear double recovery within the context of future earning capacity, or puts the plaintiff in a better position than had they not been injured, the collateral source rule is still applied. See Hume v. Lacey (1952) 112 C.A.2d 147, 152 (Evidence of pension payments received by an injured party is inadmissible to reduce his recovery against a wrongdoer’s estate for loss of earning capacity, notwithstanding that as a result of receiving both the pension and damages, the injured party may receive more than he would have received had he not been injured. Pension payments were not deducted from recovery for loss of earning capacity).
Many other cases have acknowledged that wage replacing benefits, including disability and/or unemployment benefits, are a form of collateral source and, thus, inadmissible. See e.g., Arambula v. Wells (1999) 72 Cal.App.4th 1006, 1009 ("The idea is that tortfeasors should not recover a windfall from the thrift and foresight of persons who have actually or constructively secured insurance, pension or disability benefits to provide for themselves and their families. A contrary rule, it is feared, would misallocate liability for tort caused losses and discourage people from obtaining benefits from independent collateral sources."); Billetter v. Posell (1949) 94 Cal.App.2d 858, 860 ("During the time when plaintiff was unemployed she received payments from the State Unemployment Compensation Fund. Defendants contend they should be allowed credit for the moneys so received by her. Such funds are not deductible as compensation received from other employment in mitigation of damages. Benefits of this character are intended to alleviate the distress of unemployment and not to diminish the amount which an employer must pay as damages for the wrongful discharge of an employee."). Whether the same will be held in the workers’ compensation venue is yet to be determined. Nevertheless, it seems logical that pension benefits or other income should not be directly incorporated into formulating applicant’s actual loss of earnings. Ogilvie focuses on the extent to which the industrial injury has reduced the injured workers’ actual earnings capacity, not whether or not the injured worker has other sources of income outside of work. However, when there are collateral sources of income, a vocational expert may be required to determine the injured worker’s actual loss of earnings capacity.
Analysis in light of Almaraz/Guzman, Foote, and Ogilvie:
1. The AMA Guides are Rebuttable, and Almaraz/Guzman II and Ogilvie II are not mutually exclusive.
The WCAB has explicitly opined that each of the factors used in calculating PD may be rebutted (WPI, FEC, Occupation, Age). Thus, when challenging a scheduled AMA impairment rating, it may be appropriate to utilize either Almaraz/Guzman II, Ogilvie II, or both.
2. Rating By Analogy is Permissible
The WCAB was unequivocal in its opinion that rating by analogy to any other portion of the AMA Guides, Fifth edition is permissible if it is based upon substantial evidence.
3. Rebuttal Evidence For Determining WPI Is Limited to the AMA Guides, Fifth Edition, and Earnings Capacity.
In this brave new world of rating disability, one must consider the nature of the injury, the extent of any permanent loss of bodily function or anatomical impairment, the impact of that functional loss or impairment on activities of daily living, and the extent to which those impairments impact the injured workers’ ability to earn wages, either immediately or over the long run.
For permanent loss of bodily function or anatomical impairment:
Is there a specific AMA impairment rating for the specific injury? Is it accurate? If so, use the AMA finding of WPI and stop. If not, look to other analogies within the AMA guides.
If there is no specific AMA impairment rating, look to other analogies within the AMA guides. Even absent the holding in Almaraz/Guzman II, pursuant to Section 1.5 of the AMA Guides, Fifth Edition, analogy is appropriate if the specific condition is not rated under the Guides.
If the scheduled AMA rating of impairment does not seem accurate, look to other sections of the AMA Guides, fifth edition, to analogize with regard to functional loss (ADLs) or anatomical loss.
If the injury is career ending, determine the impact on the applicant’s earning’s capacity, and note there may also be an Ogilvie analysis (not for the AME/QME to do).
By using all of the AMA guides, one can come up with a more accurate determination of AMA WPI. This impairment rating should take into consideration functional or anatomical loss as well as impact on activities of daily living. If this finding of WPI still seems disproportionate, the attorneys can then, in addition, address any impact on earnings capacity.
We already know that PD is not meant to be a direct measure of wage loss. We also know that when there is significant wage loss, a pure AMA impairment rating may likely be adjusted up due to Ogilvie II. However, where the injured worker is able to return to his or her original job, it would not seem appropriate to reduce the AMA impairment to zero, nor to adjust the FEC variant to zero. There is no indication either in statute or case law that every individual who returns to his or her original job should have no permanent disability. In fact, the WCAB has held specifically to the contrary. Again, this is because both PD and WPI reflect a combination of functional and anatomic loss.
Once the WPI is assigned, if the injury is either career ending, or likely to result in a premature end of that employee’s original career, then an Ogilvie analysis can ensue. This analysis will primarily be made by attorneys and vocational experts. Given the holdings in Foote and Almaraz/Guzman, the evaluating physician has been given much more flexibility to use his or her judgment and experience to describe impairment, and greater latitude in interpreting and applying the AMA guides.
Such flexibility may result in greater discretion in applying the DRE versus the ROM method for spinal injuries. This may lead to an increase in the use of grip loss or strength or manual muscle testing for calculating impairment. Finally, when looking at sexual dysfunction, sleep disorders, or other related problems, the physician may only need to explain why such additional ratings are necessary.
Until further clarification issues via case law or legislative reform, there will be great uncertainty in determining the true value of a case. Parties on both sides will be tempted to use these new tools in potentially inappropriate ways. For now, the practice recommendations are to use the Almaraz/Guzman and Ogilvie tools only when there are career ending injuries with disproportionately low WPI ratings, and to use these tools for negotiating reasonable settlements.
LeBoeuf is still alive
Although the WCAB has made it explicitly clear that the only way to rebut an AMA WPI impairment rating is with other evidence contained within the AMA Guides, Fifth Edition, the Board also opined in Ogilvie II that this limitation did not apply to permanent and total disability cases. Thus, while vocational testimony may now be of limited value for an Almaraz/Guzman II analysis, it still is relevant for a determination of permanent and total disability pursuant to LC § 4662.
© Copyright 2010 Alex Wong. All rights reserved. Reprinted with permission.