First Salvo: 6th DCA Upholds WCAB in Guzman Case

Thursday, August 26, 2010 | 0

By Richard M. "Jake" Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

The California 6th District Court of Appeal has issued its much anticipated decision in the defendant’s appeal in Milpitas USD v W.C.A.B (Guzman) providing a resounding endorsement of the WCAB’s analysis and holding in the second of its en banc opinions.  The Appellate Court wholeheartedly endorsed the Board’s decision quoting extensively from it in response to arguments raised by appellants and various amicus parties.  Indeed the court spent almost as much time discussing the issues raised by amicus as it did those raised by the defendant.
 
This decision breaks no new ground as far as how to approach describing impairment using the concepts in the Almaraz/Guzman cases issue by the WCAB. The Court specifically rejected the arguments raised by defendant Labor Code § 4660, by incorporating the guides mandated, use only of the traditional methodology of the guides and did not allow for the kind of creative application endorsed by the WCAB:
 
“…we agree with the District that the Guides must be applied "as intended" and "as written," but we take a broader view of both its text and the statutory mandate. 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 application without regard to how accurately and completely they reflect the actual impairment sustained by the patient.”
 
The Court also emphasized the need for physicians to have some flexibility in describing impairment, in complex and extraordinary cases, much as the WCAB had in its decision:
 
“To accommodate those complex or extraordinary cases, the Guides calls for the physician's exercise of clinical judgment to assess the impairment most accurately. Indeed, throughout the Guides the authors emphasize the necessity of "considerable medical expertise and judgment," as well as an understanding of the physical demands placed on the particular patient.  (Guides p. 18.)  "The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or tests results are plausible and consistent with the impairment being evaluated.  If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing."
 
The Court also adopted the Board’s requirements that deviation from the guides required substantial evidence to support and not simply a conclusory statement by a physician:
 
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.  If Guzman's carpal tunnel syndrome, for example, is adequately addressed by the pertinent sections of Chapter 16, an impairment rating that deviates from those provisions will properly be rejected by the WCJ.
 
The Court also noted that such medical opinions should not be routine or widely applied. In its “Conclusion” to the decision the Court noted:
 
“…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.”
 
Comments and Conclusions:
 
As noted above, this decision does not break any new ground and essentially rubber stamps (with a higher level of legal authority) the WCAB’s en banc decision.  For now, this is still the “law of the land”.
 
The Court does re-emphasize the WCAB’s comments on the limited nature of the ability to rebut the AMA guide portion of the rating. It is arguable that with the language the Court used in its concluding paragraph the Court is limiting use of rebuttal ratings to “complex or extraordinary cases”.  Given that our experience has been many physicians are simply using Almaraz/Guzman to provide alternative ratings to what are otherwise commonly described impairments, this case demonstrates the importance of obtaining additional guidance from the WCAB on what can and cannot be considered within the 4 corners of the guides.

Once of the serious questions that will have to be addressed (head on by the WCAB at some point is whether using a chart/table/graph in the AMA guides in a manner not contemplated by the guides is within the 4 corners of the guides.  Many physicians are jumping on the “loss of use” bandwagon for lower or upper extremities or even the spine as a shortcut to describing (invariably) increased ratings.  It is certainly arguable such analysis is not a methodology contemplated by the guides as there is not description of such a use anywhere in the guides.  In our office we are collecting such descriptions in order to challenge physicians with the use of such ratings as “alternative” ratings in common cases and not used simply because the facts of a specific case warrant a variance from the traditional rating.
 
So far the WCAB appears to be at least moderately judicious about what it will accept and what it will not accept as an acceptable rebuttal rating to the AMA guides. For those of you who receive the informative and entertaining “George the Bartender” series by Joe Truce, his most recent offering has an informative discussion about the WCAB panel decision in Manuela Pena v. Alvarado Hospital regarding criterion for rating sleep disorder (along with a very interesting discussion of another panel decision on the use, or not, of the LeBeouf case in 2005 PDRS ratings). Joe’s enlightening discussion provides very useful ground work on that topic.

(For those of you who do not receive Joe’s missives, you are missing out on both entertainment and information, a particularly useful combination especially enjoyed over a double Beefeater martini, chilled to 38 degrees [Joe’s choice] or perhaps a nice glass of Kendall Jackson Grand Reserve Chardonnay [my choice] at 6 p.m.) 

The recent WCAB en banc decision in Blackledge v Bank of America also indicates the WCAB is paying attention to the details of PD rating and the need for medical reports to be substantial evidence.
 
In general, I have suggested to WCJs and applicant attorney the rules on rebuttal are very similar to the old rules we had on apportionment.  A mere conclusion is a nullity.  Absent a discussion as to the rational for the doctor’s opinion that is based on the correct theories of law, the report is not substantial evidence and the Applicant does not meet his/her burden on rebuttal.  If the physician does give a detailed discussion, based on the applicable law; then we have talking points about whether the report provides a basis for rebuttal, but not before.
 
This is only the first salvo in the ongoing discussion of this issue at the appellate courts. The Almaraz case, with the identical issue, has yet to be addressed by the 5th District.  It is certainly possible with the decision from the 6th district,  the 5th may simply agree with the WCAB and 6th District and decline to hear the case. The court might even deny the writ and issue one of its unpublished opinions providing us with the court’s rational. 
 
Regardless of the results from that case, this one is sure to go up to the Supreme Court. Once the petition is filed with the Supreme Court, we should know in two to three months if the court will hear the issue. Even a denial is not presumptive of that courts thinking as it may be waiting for the 5th District’s holding.  If the 5th District issues an opinion contrary to the 6th, the Supreme Court will have to step in to clarify the result.  If granted we are likely to have to wait for two years or slightly longer for a final result.

Subscribers may read the 6th DCA's opinion by clicking the case title in the sidebar.

Richard M. “Jake” Jacobsmeyer is a founding partner with Shaw, Jacobsmeyer, Crain, Claffey & Nix in Oakland.