Almaraz
Historically, this case had an AME who applied a prior law outside of the AMA guidelines, with a very high rating using the old schedule. It went on to be re-evaluated several times.
Guzman
A QME here combined the 1997 and the 2005 Permanent Disability Rating Schedule and did not provide any explanation for this decision. This was combined with Almaraz to be reviewed.
Almaraz/Guzman II
Key words: Four Corners of the Guides
In Almaraz-Guzman II, both cases were combined, and the “Four Corners” of the 5th Edition AMA Guides became the rule to prohibit any QME from going back to the 1997 PDRS. Also, the QME is now required to explain how and why a different chapter in the Guides would be necessary to reflect an accurate level of impairment and NOT just the “ADL difficulties.”
If the physician believes that the standard impairment rating does not accurately characterize the level of impairment, then physician may use an alternative chapter of the AMA Guides to more accurately rate the impairment provided the physician explains why the deviation is necessary. This limits the ratings to the 5th edition of the AMA guides rather than the prior Permanent Disability Rating Schedule from 1997. When alternate ratings are used within the guides, a discussion is required to justify using the alternatives. Key words for this are the “Four Corners of the Guide”—consider the entirety of the guide for alternate means of calculating impairment. This may be an issue in a deposition where an attorney would like you to consider an alternate rating; my general advice is to request any further medical evidence to justify an alternative rating and provide it in a supplemental report rather than changing the medical opinion during a deposition. This way, any complexities may be fully considered with the appropriate research.
Guzman III
Guzman III is just an affirmation of Almaraz-Guzman II with more emphasis on Chapters 1 and 2 where the physician was given more leeway in justifying a broader rebuttal of the Guides. An example of this would be rejecting Table 17-2 to reflect a more equitable rating of the lower extremities. Guzman III applies to “new medical conditions” or “complex or extraordinary cases.” In orthopaedics, these issues are rare (such as a complex fracture of the pelvis).
Escobedo v. Marshalls
- Provided guidelines for addressing apportionment:
- Based on causation of disability NOT causation of injury
- What percent is caused by industrial factors and what percent is caused by other factors
- Provided guidelines for substantial medical evidence
- Must be based on reasonable medical probability
Benson v. WCAB
Key Words: inextricably intertwined
Benson was determined to have had a specific injury to her neck and cumulative trauma up through that point; the award was based on a 62% combined disability rating. However, the board determined that each should carry a separate award of 31%. These were determined to need separate apportionment, not a combined apportionment.
- If a case has multiple dates of injury (DOI), Permanent Disability must be apportioned amongst the various dates of injury.
- If this cannot be determined with reasonable medical probability then one can opine that the dates of injury and the impairment are all inextricably intertwined.
Brodie v. WCAB
Causation cannot be apportioned. It is very important to note that causation is binary, even with work being only 1% causative. Causation then gives the injured worker right to treatment, and the cost of treatment is not apportioned. Only permanent disability is apportioned.
Kite Decision
There is a synergistic effect of injury to the same body parts bilaterally versus different body parts, because the body part on the opposite side is not able to fully compensate for the impairment because it is also impaired. The presence of impairment in the same region bilaterally is more disabling and therefore requires a higher impairment rating by addition rather than the Combined Values Chart.
Likewise, adjacent body parts are synergistic due to inability to compensate. Adding again allows for calculation of greater impairment than use of the Combined Values Chart.
Hikida v. WCAB
In this case, the applicant claimed that her permanent total disability (development of Complex Regional Pain Syndrome) was the result of failed carpal tunnel release surgery, which was performed due to an industrial injury at Costco. Initially, this was apportioned 90% industrial and 10% nonindustrial, but this was eventually overturned by the Court in the determination that an injury caused by the medical care of an industrial injury cannot be apportioned.
Disability due to treatment of an industrial injury (ex: iatrogenic injury) cannot be apportioned. This is considered 100% industrial when due to the treatment. Injured workers are entitled to full compensation when disability is caused by the medical treatment of industrial injuries.
Bradley v. State of California
A QME/AME may not opine on industrial impairment outside of that evaluator’s specialty.
Lindh (City of Petaluma v. WCAB)
A police canine officer, Lindh, had injured his eye during training with a police dog, but medically was found to have a predisposing vasospastic condition. The WCAB had rejected any apportionment to the underlying abnormality. The Court of Appeal turned over that decision.
The Lindh Apportionment decision allows apportionment to asymptomatic preexisting conditions that are a risk factor to injury.