Of Course I'm Right - That's My Job; Editorial on Guzman
Friday, August 20, 2010 | 0
By David J. DePaolo
WorkCompCentral
WorkCompCentral
I'm going to gloat, because, as I constantly remind my close-to-adult children, "of course I'm right - that's my job!" Yep, I'm talking about Thursdays' decision by the 6th District Court of Appeals upholding the WCAB majority's opinion in Guzman.
Let's take an editorial trip back in history, which will be supplemented by the Court of Appeals affirmation of my legal analysis. A link to my prior editorial from 3/31/2009 is in the sidebar at left.
I said: "The plain reading of this paragraph [LC 4660(b)(1)] leads me to interpret it as meaning that there must be some reference to the AMA Guides, but I don't see where the AMA Guides are the sole determining factor as to impairment.
"Had the legislature intended that the AMA Guides be the sole source of an impairment standard, it could have easily done so by replacing the word 'incorporate' with the word 'be'. They didn't and that's the first primary clue that the WCAB picked up on. Had the lawmakers intended that the AMA Guides be the sole source of impairment description then they could have done so very easily and they didn't."
The Court said:
Section 4660, subdivision (b)(1), recognizes the variety and unpredictability of medical situations by requiring incorporation of the descriptions, measurements, and corresponding percentages in the Guides for each impairment, not their mechanical completely they reflect the actual impairment sustained by the patient. To "incorporate" is to "unite with or introduce into something already existent," to "take in or include as a part or parts," or to "unite or combine so as to form one body." (Citation.) Section 4660, subdivision (b)(1), thus requires the physician to include the descriptions, measurements, and percentages in the applicable chapter of the Guides as part of the basis for determining impairment.
I said: "First, paragraph (d) says nothing of the AMA Guides. It mentions only the "schedule," which as we noted above is rebuttable in and of itself by the plain language of the statute and long line of case law interpreting this provision of 4660.
"Second, the schedule itself DOES promote consistency, uniformity and objectivity by providing a mathematical framework upon which to utilize a factor of impairment/disability to accommodate for changes in an injured workers' post-injury environment. The consistency, uniformity and objectivity lies in the fact that you can input a certain number at the beginning of the math string and out comes a certain number at the end of the math string every time! That's called consistency and uniformity. And it's objective, because it is a pure mathematical formula."
"Second, the schedule itself DOES promote consistency, uniformity and objectivity by providing a mathematical framework upon which to utilize a factor of impairment/disability to accommodate for changes in an injured workers' post-injury environment. The consistency, uniformity and objectivity lies in the fact that you can input a certain number at the beginning of the math string and out comes a certain number at the end of the math string every time! That's called consistency and uniformity. And it's objective, because it is a pure mathematical formula."
The Court said:
Just as it charges the Board with incorrectly attaching "prima facie evidence" to the measures of impairment in the Guides rather than the disability ratings in the Schedule, the District itself has attached the Legislature's goal of promoting consistency, uniformity, and objectivity of the Schedule to the impairment evaluation. Subdivision (d) of the statute is specifically addressed to the development, adoption, and amendment of the Schedule itself, not the physician's evaluation of impairment. Nevertheless, we have no reason to question the implicit assumption that while directing those features to the Schedule itself, the Legislature sought consistency, uniformity, and objectivity in the overall process of determining disability across individuals.
I said: "This paragraph makes it clear that the schedule is only prima facie evidence, i.e. 'at first blush,' meaning that the schedule itself may not be the final evidence of disability if some other evidence has the greater force of persuasion.
"This fact has been the subject of a long line of appellate rulings basically holding that if a workers' compensation judge does not like the schedule's assessment of disability, then another disability rating can be substituted … Right here, the argument should end even if the AMA Guides are part of the schedule, and if the schedule is only prima facie evidence, and if there is better evidence of disability, then, ergo, the AMA Guides (indeed the entire schedule) is rebutted and may be usurped in favor of some better description of disability."
The Court said:
Accordingly, while we agree with the District that the Guides should be applied "as intended" by its authors, such application must take into account the instructions on its use, which clearly prescribe the exercise of clinical judgment in the impairment evaluation, even beyond the descriptions, tables, and percentages provided for each of the listed conditions. The Board aptly observed that the descriptions, measurements, and percentages cannot be dissociated from the balance of the Guides, particularly Chapters 1 and 2, which contain the instructions on the appropriate use of the ensuing chapters to perform an accurate and reliable impairment evaluation. "Thus, the AMA Guides is an integrated document and its statements in Chapters 1 and 2 regarding physicians using their clinical judgment, training, experience and skill cannot be divorced from the balance of the Guides."
I said: "First, paragraph (d) says nothing of the AMA Guides. It mentions only the 'schedule,' which as we noted above is rebuttable in and of itself by the plain language of the statute and long line of case law interpreting this provision of 4660. Second, the schedule itself DOES promote consistency, uniformity and objectivity by providing a mathematical framework upon which to utilize a factor of impairment/disability to accommodate for changes in an injured workers' post-injury environment. The consistency, uniformity and objectivity lies in the fact that you can input a certain number at the beginning of the math string and out comes a certain number at the end of the math string every time! That's called consistency and uniformity. And it's objective, because it is a pure mathematical formula."
The Court said:
By using the word "incorporate" and retaining a prima facie standard for the introduction of the PDRS ratings, the Legislature obtained a more consistent set of criteria for medical evaluations while allowing for cases that do not fit neatly into the diagnostic criteria and descriptions laid out in the Guides. 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, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides. The PDRS has expressly incorporated the entire Guides, thereby allowing impairment in an individual case to be assessed more thoroughly and reliably.
Maybe the 5th DCA in Almaraz will see it differently. I don't think so. And the parties have pledged to go to the Supreme Court. By the time that happens the Schwarzenegger administration will be long gone, as will its influence, and I likewise don't see seven justices misinterpreting the law either.
I said: "Perhaps the legislature could write clear, solid law. Until then, as I have said many times, the pendulum of workers' compensation swings every seven to 10 years. Looks like the timing is spot on." Notice rates rising?
David J. DePaolo is the president and CEO of WorkCompCentral.
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