ALMARAZ AND THE AMA GUIDES
Sunday, February 8, 2009, 09:38 PM - Understanding the CA WC system
California workers' comp has recently experienced an earthquake-type event, the Almaraz decision.
Very few observers saw this coming. What is it, and what's the fuss?
Here's a synopsis that may be helpful for injured workers and individuals interested in workers' comp who may not have been following developments in the law closely.
Almaraz, the California Workers Compensation Appeals Board en banc decision unveiled in February 2009, may be the most significant workers' comp decision in several years (a link to the consolidated decision in Almaraz v. Environmental Recovery Services and SCIF and Joyce Guzman vs. Milpitas Unified School District and Keenan & Associates) is available at the bottom of this post.
It's a 56 page decision signed by all WCAB commissioners. In past cases the California Court of Appeal and Supreme Court have been very deferential to the expertise of the WCAB. There may be appeals filed, although the decisions in both Almaraz and Guzman return those cases to the trial level for more development of the evidentiary record.
Almaraz (it's actually Almaraz and Guzman, but I'll call it Almaraz for simplicity's sake) deals with the issue of whether and how the American Medical Association Guides 5th edition, referenced in Labor Code 4660 and in the 2005 Permanent Disability Rating Schedule, can be rebutted.
In Almaraz the WCAB makes the following important findings:
-the AMA Guides portion of the 2005 schedule is rebuttable and not conclusive
-Labor Code 4660 requires consideration of the AMA Guides but does not make the AMA Guides determinative in assessing an injured employee's impairment
-the AMA Guides does not measure work impairment and indeed excludes work from the activities of daily living considered
-the AMA Guides recognize that it is merely a first step for measuring work impairment; factors outside the guides may be considered, including the impact of the injury on the employee's ability to perform work activities
-the AMA Guides allow an evaluating physician, through the exercise of judgment, to modify an impairment rating
-the law of many other states recognize that other factors can be considered in addition to the guides
Having found that an impairment rating under the AMA Guides may be rebutted, the unanimous WCAB turned to the question of what standards are to be used in determining whether there has been rebuttal.
"We conclude that an impairment rating strictly based on the AMA Guides is rebutted by showing that such an impairment rating would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability."