The “correct” application of the American Medical Association (“AMA”) Guides is heavily contested in cases occurring before the California Workers’ Compensation Appeals Board (“WCAB”). Doctors spend years studying medicine, not the AMA Guides; so it is not surprising that they are much better at treating patients than writing reports correctly applying a 613-page impairment rating manual. Even should the physician apply a mechanically correct application of the Guides, the inquiry does not end there in the Almaraz/Guzman era.

The background of this article is the 2009 en banc opinion of the WCAB in Almaraz/Guzman which held that a whole person impairment rating “must be based on the AMA Guides… the WPI component cannot be predicated on the opinion of a physician who has gone outside the four corners of the Guides to make an impairment determination.” (Environmental Recovery Services/Guzman v. Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084 (en banc). The Board added that while the “Guides” must be used to determine WPI, no specific method of applying the Guides is mandated- rather they provide an analytical framework and method for physicians to assess WPI in conjunction with their own judgment, experience, training, and skill. In 2010, the 6th District Court of Appeal reviewed the Almaraz/Guzman decision following a petition from the defendant and in turn broadened the ability for a party to deviate from a strict reading of the Guides. (187 Cal. App. 4th 812 (2010)(“Almaraz/Guzman II”)). Therein the Court held that the Guides themselves admitted that they could not anticipate or accurately describe every injury; that new or complex conditions were bound to emerge with the passage of time; and the Legislature’s intent had been for physicians to “incorporate” the Guides methodologies with their own clinical judgment to reach the most accurate determination of impairment.

This article considers three decisions which analyze the interplay between the strict or mechanical application of the AMA Guides and the Almaraz/Guzman doctrine in California workers’ compensation cases. It will provide useful examples of how to marshal the evidence to support interpretation of the AMA Guides as the most accurate.

The California Court of Appeals revisited Almaraz/Guzman in City of Sacramento v. WCAB (Cannon), 222 Cal. App. 4th 1360 (3rd Dist. Ct. of App. 2013) wherein it clarified the applicability of the legal doctrine.[1] There, applicant injured his left foot and heel while working as a police officer for the City of Sacramento. The diagnosis was plantar fasciitis. He received treatment and was released as Permanent & Stationary. Applicant continued to complain of left heel pain with weight-bearing activities but there were no objective, identifiable abnormalities present. The Agreed Medical Evaluator (“AME”) Dr. Ramsey applied the AMA Guides to find 0% impairment; however via supplemental report, he undertook an Almaraz/Guzman analysis to provide 7% WPI by analogizing applicant’s condition to a limp with arthritis since his foot pain was worsened by running activities.

The defendant argued that an Almaraz/Guzman adjustment to the AMA Guides could only be utilized in “complex or extraordinary” cases and the injury of plantar fasciitis was neither. The WCJ agreed with defendant. However, a split panel reversed by holding, opining, “[r]ather than further restrict a physician’s expertise … a physician [should be able] to rate an impairment by analogy, within the four corners of the Guides, where a strict application of the Guides does not accurately reflect the impairment being assessed.” The Appeals Court granted review. The Court of Appeals rejected the Defendant’s argument that Almaraz/Guzman may only be applied when objective findings are present or that its application requires the involvement of a “complex or extraordinary” injury. In regard to the argument that WPI should not be based solely on subjective pain complaints, the Court noted the legislature did not require a strict application of the Guides, only that “the nature of the physical injury or disfigurement shall incorporate the descriptions and measurements of physical impairments…” The AME’s analogy of applicant’s condition to a limp and arthritis was therefore appropriate since he found it more accurately accounted for applicant’s physical limitations and restrictions.

The Court of Appeal similarly rejected defendant’s second argument that a rating by analogy is only permissible in the context of “complex or extraordinary cases.” The Court found that the 6th District’s interpretation of “complex and extraordinary cases” was “syndromes that are ‘poorly understood and are manifested only by subjective symptoms’ which the AMA Guides do not, and cannot, rate.” Therefore the AME’s determination that plantar fasciitis, which has only subjective symptoms of pain, should be subject to an Almaraz/Guzman analysis was consistent with the law. The Court affirmed the finding of 7% WPI and awarded applicant costs.

While Cannon further clarified the use of Almaraz/Guzman to rebut a standard rating of the AMA Guides, the recent panel decision of Calvillo v. State of California, CWCR, 2015 Cal. Wrk. Comp. P.D. LEXIS 583 applied a similar analysis to reach the opposite conclusion.[ 2] In that case the Judge awarded 30% Permanent Disability based upon an Almaraz/Guzman opinion provided by the AME in orthopedics Dr. Sanders. A strict rating of the Guides only found 0% PD for a right wrist and right hand injury and 13% PD for psyche. Applicant had severe subjective complaints devoid of objective findings for her upper extremity. She was also noted to have provided an inaccurate history of injury to her doctors. The AME analogized applicant’s complaints to a 20% loss of the ability to push, pull, lift, and grasp with the right hand which resulted in an additional 12% WPI. The panel concluded that the AME failed to “meaningfully explain how or why” his alternative method was more accurate than a strict application of the AMA Guides. In reaching this opinion, the panel noted there was an absence of objective findings and substantial credibility issues existed with the applicant. The doctor did not adequately address these issues when he relied on applicant’s subjective complaints to support his alternative method of rating impairment. The Board amended the Findings and Award to reflect a 0% Award for the orthopedic injuries.

Can different outcomes in Cannon and Calvillo be reconciled?[3] Both cases involved an AME, who the Board often notes is chosen for his “expertise” and “neutrality”, and thus entitled to a degree of deference. See Power v WCAB (1986) 179 Cal. App. 3d 775. Both cases involved a part of body which rates to 0% PD under a strict rating of the Guides and involved applicants with subjective complaints in the absence of any objective findings. However there are notable factual distinctions such that the opinions are in harmony in their legal analysis.

In Cannon, there were no credibility issues in the applicant which would raise the specter of embellishment or malingering clouding his subjective pain complaints. Additionally, the doctor found the applicant had a work restriction (“no prolonged running”) as a result of his plantar fasciitis which would limit his ability to be a police officer. Finally, the doctor also explained how the condition typically did not result in objective findings such that the AMA Guides were ill equipped to access the injury under a strict or mechanical application.

Compare this to Calvillo where the applicant provided an inaccurate, self-serving injury history to the AME raising substantial credibility issues. Furthermore, the AME did not appear to identify in detail any actual limitations or work restrictions related to right wrist pain that the applicant would face moving forward. Finally, it is not clear that the right hand and wrist pain was a condition which involved a “poorly understood” syndrome which is typically “manifested only by subjective symptoms.” In sum, it would appear Cannon and Cavillo involve consistent legal analysis and offer the reader an example of key facts which may sway the Board to either apply a mechanical application of the Guides or an Almaraz/Guzman approach.

Finally, the recent panel decision of Greene v. Cent. Parking Sys., 2015 Cal. Wrk. Comp. P.D. LEXIS 283 (2015) offers a cautionary tale for defendants applying Almaraz/Guzman. Applicant was hit by a truck after it rolled out of park and pinned him against a wall crushing certain lower extremities. A split panel upheld a 75% rating of permanent disability where the physicians combined methods of impairment which the Guides specifically prohibited i.e. gait derangement with range of motion and sensory loss for a leg.

Initially, the panel, citing Cannon, rejected defendant’s argument that Almaraz/Guzman applied to complex or extraordinary cases. The panel acknowledged that both the primary treating physician and panel qualified medical evaluator had combined gait derangement with other factors of impairment in violation of a standard application of the AMA Guides. However, defendant filed the Declaration of Readiness and closed discovery without apparently attacking these opinions via supplemental reporting or deposition. The majority ruled that the goal of Almaraz/Guzman was to achieve accuracy in impairment rating and defendant had set for trial on a record in which the the treating physician and medical-legal examiner had both combined gait derangement with other impairment methods which resulted in higher WPI to the applicant. Based upon the unanimous agreement of doctors in utilizing the gait derangement method the panel upheld the 75% PD (life pension) finding.

Conversely, the dissent in Greene opined that both doctors’ ratings were not substantial evidence because under Almaraz/Guzman the doctor must 1) provide a strict rating per the AMA Guides, 2) explain why the strict rating does not accurately reflect the applicant’s disability, 3) provide an alternative rating using the four comers of the AMA Guides, and 4) explain why that alternative rating most accurately reflects applicant’s level of disability which the doctors failed to do. In the absence of substantial evidence as to an impairment rating, the dissent would have remanded the matter for further development of the record.
In Greene, the physicians inappropriately rated the AMA Guides by combining gait derangement with other rating methods however defendant did not challenge their opinions through discovery and instead set for trial. At trial defendant argued a point of law (“complex and extraordinary case”) which had already been specifically rejected by the Court of Appeals in its binding decision in Cannon. Additionally, the panel was faced with the option of following the undisputed medical evidence of 75% PD and forgiving the improper use of the AMA Guides under the guise of Almaraz/Guzman; or remanding the matter for further development of the record – neither option would have been a favorable result for the defendant who sought to resolve the claim by setting for trial in the first place.

In sum, the history of Almaraz/Guzman with recent decisions such as Cannon suggest the California Court of Appeals has signaled an expanded rather than narrowed view for the applicability of the doctrine. The subsequent panel decisions in Cavillo and Greene emphasize that a defendant is best served by developing a favorable factual record rather than attempting to argue that Almaraz/Guzman cannot apply per se.

Defendants should establish through medical opinion that the strict rating of the AMA Guides accurately rates an applicant’s impairment in order to manage their indemnity exposure. Defendants should vigorously challenge improper usage of the AMA Guides by physicians through deposition or supplemental interrogatories rather than waiting until trial to raise these issues. As Almaraz/Guzman involves “rating by analogy”, defendants should zealously attack claims that analogous section of the Guides is a less accurate way of assessing impairment. Any applicant credibility issues should be strongly emphasized by defendants as many arguments for Almaraz/Guzman will be driven by the subjective complaints of the applicant which cannot or are not verified by objective findings.

[1] Although originally given “unpublished” status, the Cannon decision was subsequently given publication status by the Court on January 15, 2014.
[2] As an initial caveat we note that WCAB panel decisions are not binding precedent. Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (en banc). A judge may be directed to a panel’s holding and either ignore or adopt the conclusions of the panel as they see fit. Therefore, a panel decision should never lead a prudent practitioner to presume victory or concede defeat in their own case-in-chief.
[3] The Cavillo panel did not cite or address Cannon in its opinion.