Last month the 6th DCA handed down the latest—and most authoritative—word on rebutting the AMA Guides. While the Court of Appeal agreed with the WCAB’s Almaraz/Guzman II determination that (a) the AMA Guides is rebuttable, and (b) physicians may, in certain circumstances, apply alternative chapters, methods and tables, the DCA signaled that such an approach should be the exception rather than the rule.
“Give Me a [Conservative] Sign”
During the past year and a half in the post-Almaraz/Guzman world, we’ve seen attempts to apply alternative chapters, tables and methods in even the most mundane cases. Indeed, the more “vanilla” the case (back strain, for example), the lower the WPI produced by a strict application of the Guides…and, of course, the greater the incentive for physicians to creatively apply alternative chapters and methods.
Rather than calling for an “Almaraz/Guzman” approach in all cases deemed unfair, inequitable, or otherwise lacking in the physician’s opinion, the DCA underscored that its holding was necessary to “accommodate…complex or extraordinary cases.”
Want an Almaraz/Guzman rebuttal?
First step: explain why your back strain, carpal tunnel or meniscectomy qualifies as “complex or extraordinary”!
Attention Doctors: Chapter Shop At Your Own Peril
Until now, physicians throughout California have rifled through the Guides to find a chapter, table or method with impairment numbers they deem “more accurate”. Given Almaraz/Guzman II‘s apparently unrestricted invitation to use “any chapter, table or method,” it should come as no surprise that doctors up and down the state have been all too happy to apply hernia and cardiovascular chapters to back spasms and carpal tunnel.
Does this make sense?
Of course not. It requires no “MD” at the end of your name to conclude that the back has very little to do with the median nerve! Further, the AMA Guides is clear: each chapter begins with instructions as to the narrowly circumscribed arena of injuries to be evaluated by the proceeding sections. Chapter 15, “The Spine” chapter, for example, instructs that it “provides criteria for evaluating permanent impairments of the spine”, which “consists of four regions: the cervical, thoracic, lumbar and sacral vertebrae…” (p. 373, AMA Guides). Chapter 6, “The Digestive System”—which includes the often-misused hernia table—explains that it “provides criteria for evaluating permanent impairment of the digestive system…” (p. 117, AMA Guides).
Given the foregoing, how can a physician justify using a chapter developed for the evaluation of the digestive system to measure impairment to the spine?
Great question…and the 6th DCA thinks the physician will have a (very) tough time defending such an approach:
Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected.” (p. 20, italics added)
Why will the WCJ be required to rule in favor of a strict application of the Guides? Mixing and matching non-traditional chapters is likely to result in an insubstantial, irrelevant impairment analysis:
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 WPI rating. (p. 23-24, italics added)
Because I Said So!
How many times have you heard a doctor justify his/her determination by way of the physician equivalent, “Because I said so”? Again, how many times have you heard doctors justify an indefensible position by referencing their “years of experience in the industry and clinical exam”? And, since Almaraz/Guzman I, how often has this response been supplemented with the doctor’s own “clinical judgment”?
While the 6th DCA applauds and supports physicians relying on, in part, their “clinical judgment” and “expertise”, the Court does not suggest that such qualities are magical, and thus, once chanted, protect the doctor’s analysis from further scrutiny. Rather, while a physician’s explanation for his/her departure from a strict application of the Guides “necessarily takes into account the physician’s skill, knowledge, and experience,” that is not the end of the inquiry. The physician’s explanation…
‘necessarily [also] takes into account…other considerations unique to the injury at issue’, including ‘standard texts or recent research data as a basis for his or her medical conclusions… [W]ithout a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the [WCJ] may not be able to determine whether a party has successfully rebutted the scheduled rating…” (p. 24)
In short, doctors “show your work” and do not hide beyond “clinical judgment/expertise” incantations.
To The Future and Beyond
As the defense prepares to appeal Guzman to the California Supreme Court, the companion matter, Almaraz, continues to sit with at 5th DCA. Presumably the 6th DCA’s publishing of Guzman has been awaited by the 5th District, who will now take action. If a decision in Almaraz issues that is contrary to Guzman, the “split” between the districts would dramatically increase the chances of the California Supreme Court weighing in on the matter.
A split, however, is not a prerequisite to the high court hearing Almaraz and/or Guzman. For example, in March of this year the court agreed to hear an appeal from the 6th DCA in Duncan v WCAB (11/25/09), the case that determined that cost of living adjustments (COLAs) in life pension and 100 percent PD cases are, per Labor Code §4659(c), added starting 1/1/04 and every January 1 thereafter. The Petition for Review was granted in that case despite the lack— at the time—of disagreement between the District Courts of Appeal on the COLA issue.
How Far Away Is “The Future”?
At the present time, Almaraz/Guzman II and the 6th DCA’s Guzman are the law of the land. If the California Supreme Court weighs in, do not expect a final answer for at least two years.
In the meantime?
Prepare to fight the good fight…the more you know about Guzman and the Guides, the more likely you can defeat CAAA’s attempts to misapply the Guides for fun and profit!
Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at firstname.lastname@example.org.
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