WCAB En Banc: AMA Guides are Rebuttable
Saturday, February 21, 2009 | 0
By Michel LeClerc
On Feb. 3, 2009, the California Workers' Compensation Appeals Board, sitting en banc, ruled that the American Medical Association (AMA) Guides can be rebutted by other evidence of disability when the AMA impairment rating is inequitable, disproportionate, and not a fair and accurate measure of the employees permanent disability.
In Almaraz v. Environmental Recovery Services (and a consolidated case Guzman v. Milpitas Unified School District) the injured workers were awarded PD based upon the AMA Guides and the 2005 PD schedule. Both workers challenged the reasonableness of their awards.
Following lumbar surgery, Almaraz was awarded 17% PD based upon a DRE lumbar category III impairment of 12%. His case would have rated 58% under the 1997 schedule based upon a limitation to light work and no prolonged sitting. Almaraz was precluded from returning to his regular work as a truck driver.
Guzman had bilateral carpal tunnel for which she was awarded 12% based upon bilateral 3% impairment ratings under the AMA Guides. The AME, Dr. Feinberg, felt that each upper extremity warranted a 15% impairment based upon her lost capacity for using her upper extremities, her inability to return to work as a secretary and the impact of her impairment on activities of daily living, but felt constrained to follow the 3% impairments recommended by the AMA Guides.
In both cases, the trial judges followed the AMA Guides, citing Labor Code section 4660(b) that mandates that disability be based upon the AMA Guides.
In a lengthy, 55-page decision, the state Workers' Compensation Appeals Board (WCAB) has held that notwithstanding Labor Code 4660(b), the AMA Guides and the 2005 PD schedule are only prima facie evidence of disability, meaning they can be rebutted by other evidence of disability to show that the disability should be greater or less than the scheduled rating.
In order to rebut the AMA Guides and 2005 PD schedule, a party must first demonstrate that the AMA impairment rating is inequitable, disproportionate, and not a fair and accurate measure of the employees permanent disability. In other words, if the disability rating is fundamentally unfair and does not provide just and fair compensation or if the AMA impairment rating is not rationally related to the level of permanent disability, the AMA Guides and/or 2005 PD schedule will be deemed rebutted. The WCAB concedes that there is no bright line test for rebutting the AMA Guides: The issue will have to be addressed on a case-by-case basis.
Once a party has rebutted the impairment rating, the WCAB ruled that they can then offer other evidence of disability.
Here, the WCAB gives evaluating physicians broad latitude to come up with an impairment rating based upon any or all of the following:
- the doctors experience, training, judgment and skill;
- analogies to other chapters in the Guides;
- other generally accepted medical criteria for determining impairment outside of the Guides; and
- the impact of the disability on the injured workers ability to work.
According to the WCAB, as long as these alternative criteria are fully explained (i.e. Escobedo) then the report will constitute substantial evidence of disability upon which the WCAB can base an award of permanent disability.
When the evidence rebuts the validity of the AMA Guides, and an evaluating physician has offered an alternative impairment rating, it is then up to the WCAB to determine the correct impairment standard based upon all available evidence, and then plug that standard into the rating formula under the 2005 PD schedule to adjust for age, occupation and future earning capacity.
Although the WCAB cautions against evaluating all future impairments using work preclusions under the old PD schedule, this decision clearly opens the door for injured workers to claim increased disability based upon the effect an impairment has on their ability to work.
The Bottom Line:
In any case, where a party can show that the level of impairment under the AMA Guides is unfair the WCAB will now consider other evidence of impairment properly described, explained and justified by an evaluating or treating physician.
In my view, this decision will substantially increase the amount of litigation over the PD issue. I anticipate applicants attorneys to argue that the AMA Guides are unfair in any case involving a work preclusion, justifying other evidence of impairment outside of the AMA Guides. Given the general perception among many doctors, lawyers and judges that the AMA Guides are already unfair for many
common industrial disabilities, I anticipate the applicants bar getting a sympathetic audience with evaluating physicians and the WCAB.
Michel LeClerc is a partner in the law firm of Hansen LeClerc LLP in Redding, Calif.
The views and opinions expressed by the author are not necessarily those of WorkCompCentral.com, its editors or management.
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