Significant Action by the California Supreme Court
The California Supreme Court has declined to take up on appeal the Guzman case. This means that the Court of Appeal decision will stand allowing rebuttal of the AMA Guides, through the an evaluating physician’s use of other chapters, tables or methods located elsewhere in the Guides. Milpitas Unified School District v. WCAB (Guzman)(2010) 187 Cal. App. 4th 808. Evaluating physicians can thus deviate from the standard rating called for by a plain reading of the Guides, and instead look to other parts of the Guides for a rating that more accurately reflects the applicant’s impairment, based on the physician’s clinical judgment and experience. None of the courts have made clear whether this AMA Guides deviation is permitted in every case, in most cases or in just a few cases, and based on exactly what criteria.
The Supreme Court also denied review of Minvielle v. County of Contra Costa (2010) where a WCAB panel had held that Labor Code section 4664 apportionment could not be applied if the prior awarded PD had relied on the old rating schedule and the newer injury is rating under the 2005 (AMA Guides) rating schedule. The effect of these decisions in to overturn much of applicability of Labor Code section 4664. Instead, the only way to insure apportionment to an older injury rated under a prior schedule is to make certain that it is fully addressed by current evaluation physicians for apportionment by percentage under Labor Code 4663.
Is Substantial Medical Evidence Required to Rebut the AMA Guides?
The Courts have so far upheld the WCAB’s en banc decision of Almaraz/Guzman II, but have provided little guidance as to whether a physician’s AMA Guides deviation is permitted in every case, in most cases, or in just a few cases, and based on exactly what criteria. A WCAB panel tackled this issue recently in Maldonado v. Zurich American Ins Co, where two commissioners found that an AME had sufficiently justified his refusal to apply a WPI based on range of motion and grip strength measurements. The AME, Dr. Eddington, simply stated in his report that such a rating “would not adequately describe (applicant’s) loss of functionality.” He instead relied on instead on Table 16-18 regarding upper extremity impairments due to medical conditions not previously descried in the Guides.
However, as a dissenting commissioner on the panel noted, the AME did not give any reasons why the loss of motion and grip strength did not adequately describe the applicant’s impairment, nor did he explain how he determined that the impairment was analogous to an impairment in Table 16-18. The commissioner noted that the WCAB has long held that a judge can only rely on substantial medical evidence, which means that a physician must explain “how and why” he or she reaches their conclusions. The AME failed to do so in this case and his rating by analogy therefore fails.
This case demonstrates that not even the members of the WCAB’s Reconsideration Unit can agree on the on the question of whether an AMA Guides deviation is permitted in every case, in most cases or in just a few cases, and exactly what criteria must be used to do so.