Grinberg: Almaraz/Guzman Continues March to 'Magic Words' Status

Wednesday, November 28, 2018 | 1

I report to you today that it appears Almaraz/Guzman has achieved status as a magic phrase. It need only be uttered or hinted at, and all the rules (and laws) that would otherwise apply appear to go out the window.

Gregory Grinberg

The case I make reference to is Case v. Golden Gate Bridge Highway and Transportation District, and the facts are ones we see all too often.

The agreed medical evaluator offered a rating to the bilateral shoulders, as claimed by applicant, using range of motion and grip strength. The range of motion whole person impairment assigned was 2% for one shoulder and 3% for the other, but also found that the particular diagnosis, bilateral metatarsalgia, doesn’t qualify for an impairment rating under the AMA Guides. 

He then cited Almaraz/Guzman to justify assigning WPI for loss of grip strength as well.  This inflated applicant's WPI for each shoulder to 12%!

At trial the workers' compensation judge rejected the AME’s Almaraz/Guzman opinion as not being substantial evidence. The WCJ’s reasoning was that the AME failed to explain why the “strict” rating of impairment was inaccurate or insufficient.

The WCJ further rejected the AME’s opinions because his reliance on the use of grip loss was inappropriate, given applicant’s age. The AMA Guides did not provide data for average grip strength for persons over the age of 60, and applicant was 62 at the time of the examination.

The Workers' Compensation Appeals Board, interpreting the WCJ’s opinion as only allowing for an Almaraz/Guzman rating if a case is complex or extraordinary, reversed.  The WCAB also rejected the reasoning that because there was no data for WPI in patients over 59 years of age, the statistics for a younger injured worker could be used instead. The WCAB denied review.

So let’s look at this matter: The AME gives a rating under the AMA guides, says “hocus pocus Almaraz/Guzman” and can now offer an alternative rating. The WCJ notes that not only did the AME fail to explain why the AMA rating is wrong, but that the AME used data for the wrong age group.

Labor Code Section 4660.1, tells us that the AMA Guides are prima facie evidence of the level of impairment. Since Labor Code Section 5705 tells us that the burden lies with the party seeking to prove the affirmative of the issue, shouldn’t the applicant have to bear the burden of rebutting the AMA Guides rating and invoking Almaraz/Guzman?

If that is so, what is wrong with the WCJ finding that the applicant failed to carry that burden? If the AME did not adequately describe why the AMA Guides, “as is,” were insufficient, why allow the Almaraz/Guzman rating to control?

Hopefully, in the inevitable reforms that will come in the next few years, the uncertainty and litigation caused by the progeny of Almaraz/Guzman can be reined in with legislation, much like Ogilvie became limited to pre-2013 injuries (at least, in my opinion).

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.