The Guzman Decision

Tuesday, August 31, 2010 | 0

By Mullen & Filippi

The long awaited Court of Appeal decision in the Guzman case was issued Thursday, August 19, 2010. We provide our perspective on the decision in this special edition of the Bulletin. 

WCAB Affirmed, But . . .

The 6th District Court of Appeal affirmed the Workers' Compensation Appeals Board decision, holding that the standard American Medical Association Guides rating is rebuttable, and the language of Labor Code Section 4660 permits using the entire AMA Guides to determine the impairment rating for a particular case. However, the Court also made clear that it expects the standard AMA Guides impairment rating to be the appropriate rating except in “complex and extraordinary cases”.  

In a decision that was not really a surprise, the 6th DCA agreed with the WCAB that the standard impairment rating criteria in the AMA Guides is rebuttable. The Court agreed that the statutory language that the permanent disability rating schedule (PDRS) is “prima facie evidence of the percentage of permanent disability” necessarily allows for the possibility that it can be rebutted by other evidence.

Further interpreting the language of Labor Code section 4660, the Court found that the requirement that the impairment rating for a particular injury “incorporate” the descriptions, measurements and corresponding percentages of impairment for that injury set forth in the AMA Guides is not the same thing as requiring that those criteria “apply exclusively”. The Court noted that the Guides, in its introductory chapters, recognizes that it is a framework, and cannot address every possible impairment. The Court found that to accommodate “complex or extraordinary cases”, the Guides calls for the physician to use his or her clinical skill and judgment to evaluate whether the measurements or test results are consistent with the impairment being evaluated. Describing the Guides as “an integrated document”, the Court found that the instructions in Chapters 1 and 2 of the Guides, instructing that physicians are to use their clinical judgment, training, experience and skill in using the Guides, describe the manner in which the Guides were intended to be used.

In response to defense arguments that allowing deviation from the standard AMA Guides rating criteria would result in doctor shopping and decisions based on subjective considerations rather than objective evidence, the Court found that these are not “inevitable outcomes”. The Court noted that a medical opinion must constitute substantial evidence, and must be supported by facts and reasoning. The Court stated: “Accordingly, a physician’s medical opinion that departs unreasonably from a strict application of the Guides can be challenged, and it would not be acceptable as substantial evidence or fulfill the overall goal of compensating an injured employee commensurate with the disability he or she incurred through the injury.”

Later in the opinion, the Court further stated: “Simply presenting a view contrary to an established rating in the Guides . . . would not be sufficient to rebut the . . . rating. As discussed earlier, an impairment rating that is inadequately supported by evidence and reasoning and unquestionably, a rebuttal position arrived at by hunting through the Guides for a more favorable rating will result in an opinion the workers' compensation judge (WCJ) will necessarily reject as insufficient evidence.”

In further discussing where a doctor may look to find a rating the doctor considers to be accurate, the Court commented: “If the physician expresses the opinion that the chapter applicable to a particular kind of injury does not describe the employee’s injury, but all other chapters address completely different biological systems or body parts, it would likely be difficult to demonstrate that that alternative chapter supplies substantial, relevant evidence of an alternative (whole person impairment) WPI rating.”

The Court found that a successful rebuttal under these circumstances would require the doctor to explain why departure from the standard impairment percentages is necessary, and how he or she arrived at a different rating. The doctor’s explanation would “necessarily” take into account the doctor’s skill, knowledge and experience, and any considerations unique to the particular injury. The Court also stated that the doctor could rely on resources outside the Guides such as “standard texts or recent research data” to explain his or her conclusions, and the WCJ should be allowed to hear the evidence, and decide whether or not the standard rating has been rebutted.

The Court commented: “Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the trier of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment.”

Again emphasizing the point that the doctor’s opinion must be based on substantial evidence, the Court later stated: “As discussed, if the chapter applicable to the injury under scrutiny is disregarded by the examining physician without a sufficient evidentiary basis, the physician’s conclusions will necessarily be rejected.”

In conclusion, the Court found that by using the word “incorporate” and retaining the language that the PDRS is “prima facie” evidence, the Legislature created a “more consistent set of criteria” for evaluating disability while still “allowing for cases that do not fit neatly into the diagnostic criteria and descriptions laid out in the Guides.”

Recognizing that the Guides cannot anticipate every situation, the Court held that, “to accommodate those complex or extraordinary cases”, the Guides calls for a physician to exercise clinical judgment “to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides.”

What Does It Mean?

As we interpret this decision, the Court of Appeal found that, in most cases, the standard impairment rating criteria in the AMA Guides must be followed. However, consistent with the WCAB, the Court found that the AMA Guides allows for deviation from the standard criteria when a doctor determines, based on clinical judgment and experience and a review of the facts of the case, that the standard impairment rating is not accurate.

As stated more than once in the decision, deviating from the standard rating is only appropriate in “complex and extraordinary cases”, and the doctor’s opinion supporting a non-standard rating must be based on substantial evidence. Thus, as we read this decision, in order to successfully rebut the standard rating, the doctor’s report must establish both that the case is “complex and extraordinary”, and that there is a valid medical basis for the alternative rating proposed.

While this opinion does affirm the WCAB decision, it also clarifies that the bar for rebutting a standard rating is perhaps higher than some applicants and their attorneys, and some doctors, seem to believe.

What Happens Next?  The Court of Appeal decision was ordered published, so it is now an opinion which can be relied on as authority in other cases. It is not yet a final decision however. Under court rules, the decision is final thirty days after it was issued, and the parties have ten days from the date it becomes final to seek Supreme Court review. Until the decision becomes final, the Court of Appeal has the ability to review its decision again and issue a different decision, although that is unlikely. On Friday, Aug. 20, WorkCompCentral reported that the defendant had not yet decided whether to seek further review by the Supreme Court.

In the meantime, the Almaraz case remains pending before the 5th District Court of Appeal, which has not yet decided whether or not to grant review. It is possible that the 5th District may disagree with the 6th District opinion in Guzman, and issue a holding which is different in some way. But it is more likely that the 5th District will defer to this decision. What is most likely is that the 5th District will now grant review in Almaraz and issue a brief decision affirming the WCAB decision, citing to the 6th District opinion in Guzman. Nonetheless, nothing is guaranteed. If the 5th District does issue an inconsistent opinion, the Supreme Court will probably grant review and it will be up to that body to finally resolve this issue.

For now, we will continue to review and, when appropriate, challenge those medical opinions that seek to deviate from standard AMA Guides impairment ratings.

WorkCompCentral subscribers may download the opinion by clicking on the case title in the sidebar.

Mullen & Filippi is a workers' compensation defense law firm with 12 offices in California. This column was reprinted with the firm's permission from its client bulletin.