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Grinberg: Guzman Rebuttal Only for Applicant's Gain?

By Gregory Grinberg

Thursday, March 11, 2021 | 0

It should come as no surprise to frequent readers that I am a keen observer of the fact that life is not fair. However, besides my own perceptions of the human experience, I frequently hear the laments that the rulings of the Workers' Compensation Appeals Board are particularly unfair to defendants and that different standards are applied to arguments, depending on which party is making the argument.

Gregory Grinberg

Gregory Grinberg

So, let us consider the case of Savoie v. State of California. The medical-legal examiner opined that the strict rating under the AMA guides did not accurately reflect the whole-person impairment, and instead offered an opinion under Almaraz-Guzman. Nothing new here, right? Well, the medical-legal evaluator opined that a lower impairment more accurately reflects the WPI. 

Now, oddly enough, the panel opinion does not reflect whether this medical-legal evaluator was an agreed medical evaluator or a qualified medical evaluator. Of course, an AME’s opinions would be given considerably more weight and deference, but it is not clear the status of this particular evaluator from the panel opinion.

After trial, the WCJ adopted the opinions of the medical-legal evaluator, finding a rating based on the lower 18% WPI rather than the strict AMA rating. However, on appeal, the WCAB reversed.

Why did the WCAB decide the Almaraz/Guzman opinion was inadequate?

First, the panel summarized the issue as follows:

“Here defendant is attempting to utilize an alternative rating to reduce the applicant’s permanent impairment. Assuming that it is even possible to utilize Guzman to reduce a scheduled impairment, any such analysis must come under even stricter scrutiny.”

The panel went on to conclude that the medical-legal evaluator’s rebuttal of the AMA guides was not sufficiently supported and that it “need not determine whether it is ever permissible to reduce a scheduled impairment by utilizing a Guzman analysis.”

Well, why wouldn’t it be? 

Guzman offers no restrictions on the purpose of the rebuttal of the strict AMA guides.  The sole guidance provided is that the AMA guides can be rebutted and, when rebutted, the medical-legal evaluator, whether AME or PQME, can use another table or chart to more accurately rate the impairment. 

In Gomez v. Castle & Cooke Inc., a 2012 panel decision, the majority of the split panel upheld the WCJ’s reliance on a QME’s “reverse” Guzman analysis to reduce the WPI that would have resulted from the strict AMA guides application.

Similarly, in Riley v. City of Pasadena, a 2011 panel decision, the AME was upheld in an Almaraz/Guzman opinion reducing WPI from strict AMA application.

Further, Guzman offers no direction to treat a result that benefits the defense with greater scrutiny than that which benefits applicants. As any cook will tell you, that which is good for the goose is good for the gander.

I am all for limiting the application of Guzman and its progeny. In fact, I will be the first to volunteer that we should eliminate Guzman altogether, and both applicants and defendants can be bound by strict AMA guides.

But in the meantime, it would make sense to the undersigned that if the AMA guides can be rebutted, then whether it is to the benefit or the detriment of injured workers is not relevant in the face of due process considerations.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.


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