WCAB Panel Rolls Back Almaraz/Guzman

A WCAB panel rejected an AME’s use of the hernia table to rate a bilateral shoulder injury.  The Board panel threw out the AME’s opinion and overturned the Judge, rejecting the use of an alternate chapter, table or method in the AMA Guides simply to achieve a “desired result,” such as a higher PD rating. (Shipp v. Gottchalks/SRS).

The AME and the trial Judge both cited Almaraz/Guzman to support an award of PD greater than the 10% WPI on the right and 5% WPI on the left allowed using the standard AMA Guides impairment rating for the upper extremities.  Instead, the AME assigned 19% on the right and 10% on the left using the hernia table.  Of course, the applicant did not have a hernia.

The Board panel, relying on the WCAB en banc decision of Almaraz II, rejected any rating deviation which is based on the notion that the standard AMA Guide rating is “inequitable, disproportionate, and not fair and accurate measure of the employee’s permanent disability.”  Any time that language or something like it appears in a medical-legal report as the sole justification for a deviation from the standard AME Guide WPI, one should assume that the report fails to constitute substantial evidence.

The panel also noted that Almaraz II rejected any rating by analogy that was based directly or indirectly on the old PD rating schedule.  Hence, any time a medical opinion relies only on work restrictions or a loss of ability to compete in the open labor market to justify a deviation, the opinion should be viewed as insubstantial evidence.  Those disability measures were used in the 1997 Schedule for Rating Permanent Disability.  In this case, the AME based his deviation in part on applicant’s work restriction from “heavy lifting” to justify use of the hernia table.  Therefore, the panel noted that the AME’s “hernia analogy is not substantial evidence under Almaraz II.

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