Another Almaraz/Guzman II Perspective
Wednesday, September 9, 2009 | 0
By Shawn M. King
Almaraz II is here and, as promised, I'm ready to review the case.
First off, I'm feeling very self-satisfied in terms of how we've addressed Almaraz to this point.
As you'll recall, the position has been to stay within the AMA Guides (5th Edition) in finding a proper analogy, and also to avoid merely picking a value from an overall impairment table. Without question the new opinion confirms the correctness of keeping the analysis within the AMA Guides alone. On that score we need not change our thinking at all.
Also quite happily in my view, the court has called for detailed analysis for why a "standard" AMA rating is wrong. The analysis again must stay within the Guides and use Guides' based explanation for the departure from a standard AMA rating.
I think this means that the device used by the AME in the Guzman case (analogizing a 25% loss of function of an upper extremity to the ¼ AMA value for an entire upper extremity) is absolutely wrong. There is no such logic applied or explained anywhere in the Guides. That kind of analogy has no place in reports; banish it from your thinking.
Additionally, notions of fairness, inequity and disproportionate outcomes must be stricken from your thinking and definitely from your language in reports. Almaraz II specifically acknowledged that a standard of fairness, inequity, etc., was far too subjective to be workable, and that language has been jettisoned.
Before getting to what we do now, there is need to explain some of the legal goop in the decision. The court spent considerable time talking about "prima facie" evidence. For the Latin buffs, prima facie literally means '"at first sight." For legal purposes, the important thing to know is that by definition prima facie evidence only establishes the outlines of a case, it is not conclusive as to all matters. This is the heart of the Almaraz II holding that the rating in a given case is still rebuttable.
Equally important however, is that prima facie evidence is just that evidence. Until it is surmounted by more persuasive evidence, it rules the day. That means merely disliking a standard AMA rating is not sufficient grounds for applying another AMA rating. You have to provide detailed rationale for why the standard rating is an incorrect depiction of the residuals for a given case.
The most important feature to analyze for any potential departure from standard rating is ADLs.
The second most important feature to consider is the extent to which a standard rating does not make use of valid medical findings.
Unless you can show that a standard rating ignores too many deficiencies in ADLs, an attempt to circumvent a standard rating should fail, both analytically and as a matter of common sense. In conjunction with that, if you can show that objective features are being ignored that will assist in producing substantial evidence justifying an alternative/analogized rating.
First case, injured worker (IW) suffers a legitimate injury with frank herniated nucleus pulposus (HNP) at L4-5 and comes to surgery, not including fusion. There was radiculopathy pre-surgery. The lead residual complaint is a loss of lifting power. Reflexes are fairly well maintained, and radicular findings have resolved. That patient easily falls in to diagnosis-related estimate (DRE) category III, likely the low end.
Second case, same findings, but patient has uncontrolled high blood pressure preventing surgery. The standard AMA rating would also place that person in DRE category III, with the difference being that hopefully you'd give this patient the high end for 13% as opposed to 10-11 for the first patient. In the case of our second IW however, there is legitimate reason to consider whether or not the DRE III adequately addresses the residuals.
The findings in the second case become essential in terms of how they play on ADLs. Is the unresolved radiculopathy so bad as to function as a sort of neurogenic claudication? Does the low back pain in general interfere with sitting or standing? If you haven't seen the direction this is going yet, consult Table 1-2 on page 4 of the Guides. If there is a true reason for invoking additional rating components from elsewhere in the Guides you should first build the case in Table 1-2.
Note that if Table 1-2 elements are actually present, it may sometimes be true that you haven't fully incorporated standard AMA Guide elements as a starting point. In other words, sometimes the standard AMA rating itself will really cover matters.
For the example given, note that Corticospinal tract damage (section 15.7) exists in addition to the DRE. If there is legitimate station and gait dysfunction from the HNP, or some sort of neurologic loss affecting sexual function for example, you need not analogize, you only need combine DRE and the rating from Table 15-6 (page 396).
In the second case, presuming the neurologic findings aren't so stark, a crucial feature will be patient credibility and reported pain levels. This is where the sex and sleep battle routinely waged by the applicant side will still be fought. How much you yield on any given case should be based on a matrix of objective findings in conjunction with things such as patient credibility, medication use, patient credibility, daily functioning, patient credibility, whether the person has returned to work and the nature of work duties, and patient credibility.
Presuming patient credibility, now you can rebut the standard rating not based on fairness but on inadequacy of the standard rating. The extent to which you then apply sleep, sex, etc., ratings then devolves to a judgment call on your part.
Do note that smart defense attorneys and claims people should start making better use of the Guides in attacking attempts to depart from a standard rating. For example, box 15-1 on page 382 of the Guides should be emblazoned on the foreheads of defense attorneys. The argument should be that if your alternative rating is predicated on poorly considered objective findings where does the standard rating fail in consideration of any of the elements from Box 15-1?
Here again the problem may be that too many doctors have presumed that DRE rating is the start and finish of spinal rating. Again, if neurologic findings are prevalent, then corticospinal rating also already exists. Remember to use it when truly present. I believe aggressive defense attorneys should appropriately be able to deflect lazier alternative ratings by hammering away at what is already considered in the DRE.
The possible rebuttal for the attack from the defense once again is a return to noting the failure of the features to adequately "cover" loss of function for activities in Table 1-2.
If purely a psych case, and not also involving cognitive loss from head trauma or other medical source, nothing has changed to my analysis. You still start with GAF. Whether or not you believe additional rating ought to apply for sleep or sexual problems for example, comes down to how you view the GAF. Is GAF truly Global as the acronym implies? Do the GAF tiers or numbers already account for all ranges of function? If a depressed person (with no neurologic findings) loses ability for maintaining an erection, or suffers inability to moisten as expected with sex, is that a separate problem or does GAF cover it? That becomes the medical battle. I can only outline the issue. The treatment of the issue has to come from medical opinion. What is unifying about the psych and the physical however is that both should be looking to how a standard AMA rating or standard GAF number fail to consider losses experienced in Table 1-2 functioning.
Do note a slight twist for the psych cases. If the initial injury is a head injury or cognitive loss, rating by GAF alone is likely wrong. The court in Almaraz II took some time in explaining the difference between pure psych cases/GAF and cognitive/neurologic loss related to physical sources. The latter is rated per chapter 14 of the Guides. If a head injury case is rated out of the gate with GAF then the defense should challenge the rating, and should prevail. We can expect that virtually all head injury/cognitive cases will have a companion psych claim. While the psych element will face a higher causation threshold, fighting that battle will be worth it for the applicants if the GAF score is likely to be low.
Some things we should expect in the future:
- More sub rosa video. Loss on ADLs almost always is a subjectively reported feature. Puncturing that report should also puncture and deflate any alternative rating.
- Another wave of supplemental report requests. This time from the defense. The letter will ask for reconsideration of alternative ratings granted under the subjective Almaraz I standard and whether the new analysis alters the rating.
Happily for us, if you've been employing the methodology already in place for Almaraz I, which stressed real elements and not fairness anyway, most of the alternative ratings should survive even under Almaraz II.
This is a first treatment of the issue. I will likely fine tune things in the weeks ahead.
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Shawn M. King is a consultant and former attorney who has specialized in workers' compensation for nearly two decades. He is an approved speaker by the California Department of Workers' Compensation.
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