Almaraz-Guzman II
September 8, 2009
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Steven D. Feinberg, M.D.M. Kale Wedemeyer, M.D.
Maureen D. Miner, M.D.
Nicole Chitnis, M.D.
Offices in Palo Alto, Los Gatos, Gilroy & Marin / Feinberg
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Palo Alto, CA 94304
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Almaraz-Guzman II
September 8, 2009
Page 4
Almaraz-Guzman II WCAB En Banc Decision
Providing a Rating that is the Most Accurate Reflection of the Impairment
Steven D. Feinberg, M.D.
Board Certified, Physical Medicine and Rehabilitation
Board Certified, Electrodiagnostic Medicine
Board Certified, Pain Medicine
Qualified Medical Evaluator
On September 3, 2009, the WCAB provided what is being called Almaraz-Guzman II. There have been a flurry of opinions about this revised decision but I thought I would try to simplify and share how the AME/QME/Treating physician might respond when queried about Almaraz-Guzman II.
The thoughts and ideas in this document are only some possible approaches and their inclusion does not constitute justification for use. Remember and note well that whatever method is chosen from within the AMA Guides 5th Edition to provide a rating that is the most accurate reflection of the impairment, the opinion must be substantial evidence and be medically reasonable (make sense) and it must be justified (explained) to the concerned parties. The physician only provides a medically reasonable opinion whereas the final arbiter is the finder-of-fact, the WCAB and the courts.
I urge you to read the full Almaraz-Guzman II WCAB En Banc Decision which can be obtained at http://tinyurl.com/Almaraz-Guzman-II on my web site.
WCAB Conclusions
The WCAB stated in conclusion that “a permanent disability rating established by the Schedule is rebuttable; the burden of rebutting a scheduled permanent disability rating rests with the party disputing it; one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s WPI under the AMA Guides; and when determining an injured employee’s WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee’s impairment.”
WCAB Caveats
· The WCAB has rejected their prior 2/3/09 opinion and standard regarding “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability” and the physician should not consider such issues or language.
· The WCAB emphasizes that their “decision does not permit a physician to utilize any chapter, table, or method in the AMA Guides simply to achieve a desired result, e.g., a WPI that would result in a permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005.”
· The WCAB emphasizes that “A physician’s opinion regarding an injured employee’s WPI under the Guides must constitute substantial evidence; therefore, the opinion must set forth the facts and reasoning which justify it. Moreover, a physician’s WPI opinion that is not based on the AMA Guides does not constitute substantial evidence.”
v The physician may utilize any chapter, table, or method in the AMA Guides 5th Edition that most accurately reflects the injured employee’s impairmentAMA Guides Impairment Rating Process
1. The 1st step in this process is clearly for the physician to provide a standard, traditional or literal interpretation of the AMA Guides.
2. Almaraz-Guzman II states that “Once a treating physician, AME, or QME has offered an opinion regarding the injured employee’s WPI under the AMA Guides, then the injured employee or the defendant may seek to challenge that opinion through rebuttal evidence.”
We will have to see how this plays out, but it seems that the physician should not be addressing Almaraz-Guzman II in the initial report until the concerned parties have had a chance to review that report and if they so choose, to rebut it. The WCAB suggests that this rebuttal evidence initially should be obtained either through deposing the physician or through a supplemental report.
The WCAB states that “In the ordinary case, once a physician has issued a WPI opinion based on the AMA Guides, a party should be able to anticipate the approximate percentage of permanent disability that would result from utilizing that WPI in the Schedule’s rating formula. In turn, that party should be able to determine whether it wishes to challenge that WPI opinion. If so, the party typically should be able to obtain rebuttal evidence.”
3. If the physician’s opinion is rebutted, then the 2nd step will be to determine whether the rating is the most accurate reflection of the impairment which was provided using a standard, traditional or literal interpretation of the AMA Guides.
a. If the answer is yes, the physician portion of the rating process is done.
b. If the answer is no, then move on to step 3.
4. If the rating is not the most accurate reflection of the impairment using a standard, traditional or literal interpretation of the AMA Guides then the 3rd step involves determining the most accurate impairment using his or her clinical judgment in order to come up with a rating, which is based upon the unlimited use of any and all other chapters, tables and methods, so long as the opinion is deemed substantial evidence (which is decided by the finder of fact, the WCAB and the courts). The physician must stay within the “four corners” of the AMA Guides to do this.
Discussion
The WCAB tells us that “…one way an injured employee or a defendant may rebut a scheduled permanent disability rating is to successfully challenge one or more of the component elements of the rating, such as by establishing a WPI under the AMA Guides that most accurately reflects the injured employee’s impairment.”
The WCAB uses the word “impairment” and not “disability” in this context. Yet the WCAB also tells us that “…the burden rests with the party, be it the injured employee or the defendant, seeking to overcome the presumptively correct scheduled rating that is “prima facie evidence” of the employee’s percentage of permanent disability (my underline).” Further, the WCAB notes that “…it is the percentage of permanent disability established by the Schedule – i.e., the scheduled permanent disability rating – that is rebuttable.
The WCAB tells us that the current 2005 Schedule uses a formula made up of component elements to determine the percentage of permanent disability in any particular case. That is, the percentage rating established by the 2005 Schedule is arrived at by following a formula that takes the injured employee’s WPI percentage as determined in accordance with the AMA Guides, multiplies this WPI percentage by a DFEC adjustment factor, and then adjusts the result based on the employee’s occupation and age at the time of injury to arrive at the final percentage rating. Therefore, consistent with case law on the prior Schedules, an injured employee or a defendant may rebut the percentage of permanent disability under the 2005 Schedule by successfully challenging any one of the individual component elements of the formula that resulted in the employee’s scheduled rating – such as the injured employee’s WPI under the AMA Guides.
The AMA Guides 5th Edition defines impairment as “a loss, loss of use, or derangement of any body part, organ system, or organ function.” The AMA Guides 5th Edition defines disability as an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment.
An impairment may lead to functional limitations or the inability to perform activities of daily living. Impairment percentages or ratings … reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (ADL), excluding work.
The WCAB now tells us not to evaluate what is “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability” but rather to provide a rating that is the most accurate reflection of the impairment and an opinion that qualifies as substantial evidence. The Almaraz-Guzman (II) “decision does not permit a physician to utilize any chapter, table, or method in the AMA Guides simply to achieve a desired result, e.g., a WPI that would result in a permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005.”
Sincerely,
Steven D. Feinberg, M.D.
Adjunct Clinical Professor, Stanford University School of Medicine
Board Certified, Physical Medicine and Rehabilitation
Board Certified, Electrodiagnostic Medicine
Board Certified, Pain Medicine
Qualified Medical Evaluator
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