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  1. #1
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    Default What's The Status of Almaraz/Guzman

    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.

    The conclusion?

    "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."

  2. #2
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    Default Re: Has This Been Over Turned

    Have you seen any decision that overturns Almaraz/Guzman ?
    You can always search/keep up to date here http://www.dir.ca.gov/wcab/wcab_appeal.htm

  3. #3
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    Default Re: Has This Been Over Turned

    I can't find anything, but I seem to remember that it was overturned in 2010. Could be wrong, will keep trying.

  4. #4
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    Default Re: Has This Been Over Turned

    Almaraz-Guzman II WCAB Decision
    Providing a WPI that is the Most Accurate Reflection of the Impairment
    On September 3, 2009, the WCAB provided Almaraz-Guzman II. This article will discuss how the AME/QME/Treating physician might respond when queried about Almaraz-Guzman II. I urge you to read the full Almaraz-Guzman II WCAB Decision, which can be obtained at http://tinyurl.com/Almaraz-Guzman-II on my web site.
    Summary of Almaraz-Guzman II
    The physician is charged with providing a whole person impairment (WPI) rating utilizing any chapter, table, or method in the AMA Guides 5th Edition that most accurately reflects the injured employee’s impairment. The opinion must be substantial evidence.
    WCAB Conclusions
    • 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;
    • 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.”
    • 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.”
    When to Apply Almaraz-Guzman II
    The evaluating physician needs to first provide a WPI using a “strict” approach the AMA Guides. This means a standard or traditional approach.
    There is some question as to whether the evaluating physician should address Almaraz-Guzman II with the initial visit absent a subsequent letter of rebuttal from either the applicant or defense.
    The WCAB in Almaraz-Guzman II states that “… permanent disability rating established by the Schedule is rebuttable” and “… the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating” and “… 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 whole person impairment (WPI) under the AMA Guides…” Also, “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.”
    Thus, it is the permanent disability (PD) resulting from the 2005 Permanent Disability Rating Schedule (PDRS) which is rebuttable by either party.
    It is important to remember that the physician only provides the WPI, which is only one part of the final permanent disability rating. The WPI is the starting point as the final permanent disability may increase per Ogilvie II after consideration of the DFEC (Diminished Future Earning Capacity), age and occupation. It is the WCAB and not any particular physician that is the ultimate trier-of-fact on medical issues.
    The argument against addressing Almaraz-Guzman II in the initial report is that since it is unknown what the permanent disability rating will be when all factors are considered, the physician should await further query from the parties, and address it either in deposition or a supplemental report, if there are any concerns that the AMA Guides WPI does not lead to an accurate representation of permanent disability.
    While on the surface 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 also consider the effects of the DFEC, age and occupation, the reality is that from a practical standpoint, attorneys may ask for Almaraz-Guzman II to be addressed up front.
    How to Apply Almaraz-Guzman II
    Activities of Daily Living (ADL)
    The AMA Guides states that “Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that 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.”
    In regards to actually addressing Almaraz-Guzman II, it is critical to analyze the injured workers activities of daily living (ADLs). If a “strict” AMA Guides WPI does not take into account the absence or presence of ADL deficits, then this may be a justification for applying Almaraz-Guzman II. Remember, it can go both ways; an impairment rating can be raised or lowered via Almaraz-Guzman II.
    The issue surrounding ADLs is problematic as activities of daily living are subjective in nature and are not something the physician actually measures. The astute physician will compare what the patient reports in regards to ADL deficits/losses from what is expected from the objective findings and pathology.
    To put it another way, while the physician should respect the patient’s report regarding functional limitations in ADLs, the physician must determine if this report is consistent with the objective medical findings.
    Objective Medical Findings
    There are situations where the “strict” AMA Guides WPI does not provide the most accurate impairment when considering the pathology and the objective medical findings. In other words, if the strict WPI does not adequately address legitimate objective medical factors/pathology, then this may constitute substantial evidence to justify an alternate Almaraz-Guzman II WPI.
    What Does Most Accurate Impairment Rating Mean?
    The term “accurate” is not given in any context by the WCAB. While we can assume that the term “accurate impairment rating” refers to a relationship between the industrial injury and the permanent effects an objective medical condition has on the injured employee’s ability to perform ADLs, the question becomes which ADLs we are talking about.
    The defense may argue that the AMA Guides clearly does not account for work and that the impairment rating should be based on the activities of daily living as listed in the AMA Guides 5th Edition as follows:
    • Self-care & personal hygiene: Urinating, defecating, brushing teeth, combing hair, bathing, dressing oneself, eating
    • Communication: Writing, typing, seeing, hearing, speaking
    • Physical activity: Standing, sitting, reclining, walking, climbing stairs
    • Sensory function: Hearing, seeing, tactile feeling, tasting, smelling
    • Non-specialized hand activities: Grasping, lifting, tactile discrimination
    • Travel: Riding, driving, flying
    • Sexual function: Orgasm, ejaculation, lubrication, erection
    • Sleep: Restful, nocturnal sleep pattern
    The applicant may argue that since the goal is to provide an accurate permanent disability award, the impairment rating should bear some resemblance and have some relationship with the effects of that impairment rating on the injured worker’s ADLs with respect to functioning/activities at work (e.g. work ADLs).
    Below I have listed work activity ADLs. In this context, there must also be consideration for pacing

    (speed of activity), repetition (repetitive activities), time (prolonged activity), and positioning (static or awkward posturing) factors:
    • Overhead work
    • Work at or above shoulder level
    • Work below shoulder level
    • Torquing
    • Lifting & Carrying,
    • Reaching, Pushing & Pulling
    • Grasping / Gripping
    • Feeling / Fingering
    • Pinching
    • Handling / Holding
    • Fine manipulation
    • Keyboarding
    • Balancing
    • Working at heights
    • Climbing ladders / stairs
    • Walking on uneven terrain
    • Standing / Walking
    • Crouching
    • Sitting
    • Twisting
    • Bending
    • Squatting, Kneeling, Stooping
    • Working around moving machinery
    • Driving
    • Spine flexing, extending, bending, and rotating
    Conclusion
    Almaraz-Guzman II is relatively new and the defense and applicant community differ on how to interpret it. As physicians, our responsibility is to provide a thoughtful and balanced opinion that provides a WPI which is accepted as substantial evidence and which most accurately reflects the injured worker’s impairment.
    It may be best in this continued period of uncertainty, to provide different "scenarios" that address the concerns of both the applicant and the defendant - thus leaving the final decision about what is substantial evidence to the WCAB.
    Remember, it is the WCAB and not any particular physician that is the ultimate trier-of-fact on medical issues. This was written by Dr Fienberg. The SAME DR. I seen back in 2006 that said I have a gaf score of 50. He said my rsd has spread to include upper extremities. His ability to compete in the open market is seriously impaired. This IS one of the LEADING doctors in the country, when it comes to RSD. The AME didn't report on ANY Ability to compete in the open market. I haven't wore a shoe or sock on my foot since 2004. I been kicked out of more restaurants than I can count. I am confronted everywher I go about why I can't put on a shoe or sock. Who do you know that is going to hire someone that can't where a shoe or sock. It's not only a health issue, it's a safety issue.

  5. #5
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    Default Re: Has This Been Over Turned

    The AME didn't report on ANY Ability to compete in the open market. I haven't wore a shoe or sock on my foot since 2004. I been kicked out of more restaurants than I can count. I am confronted everywher I go about why I can't put on a shoe or sock. Who do you know that is going to hire someone that can't where a shoe or sock. It's not only a health issue, it's a safety issue.
    RSD is not ratable in itself... the issues you outline here are not compensable.
    Ability to compete in the open labor market is already taken into consideration when a PTP/AME evaluates/calculates your PD/WPI rating... the rating reflects your inability to compete, loss of earning capacity etc.

    If "pain" is included in the initial PD/WPI rating... the RSD/pain would only add an additional 3% to the final rating.
    Once you are MMI and rated... if the RSD worsens... it would be covered under future medical.
    If you are witin 5 yrs of the org DOI, you can petition the court to reopen the claim for new and further disability. Otherwise, your rating stands. You would be entitled to treatment to the accepted body parts...if the RSD was included, if not, you go back to court.

  6. #6
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    Default Re: Has This Been Over Turned

    Ability to compete in the open labor market is already taken into consideration when a PTP/AME evaluates/calculates your PD/WPI rating... the rating reflects your inability to compete, loss of earning capacity etc.

    That's what my issue IS. My ability to compete. What job could I compete for? Remember, I work on offshore DRILLING rigs. My earning capacity went from 70,000 a year, to 800 every two weeks.

    Since body parts aren't rateable, just based on ability alone, are you saying a person that is mobile, can have the same rating as a person confined to a wheelchair?

    ---------- Post added at 02:31 PM ---------- Previous post was at 01:00 PM ----------

    Let me ask you this, shouldn't ADL be considered in rating
    Last edited by dolphins#1; 04-12-2012 at 12:24 PM.

  7. #7
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    Default Re: Has This Been Over Turned

    That's what my issue IS. My ability to compete. What job could I compete for? Remember, I work on offshore DRILLING rigs. My earning capacity went from 70,000 a year, to 800 every two weeks.
    Doesn't matter...you could be considered able to work in a sedentary job... earning minimum wage.
    Since body parts aren't rateable, just based on ability alone, are you saying a person that is mobile, can have the same rating as a person confined to a wheelchair?
    I'm saying ratings are complex matters... few IW's understand the process. A person in wheelchair can be capable of working a sedentary job. The same as a person mobile... how one person is rated shouldn't be compared to that of another. Not the same.
    Let me ask you this, shouldn't ADL be considered in rating
    ADL...assume you refer to Average Dailing Living activities...yes, those are considerations, and taken into account in the AMA 5th edition for rating disability as well as the PDRS...

    A WCAB judge is the final trier of fact in ratings... but they rely on the DEU to review and rate a AME or PTP report.

  8. #8
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    Default Re: Has This Been Over Turned

    A person in wheelchair can be capable of working a sedentary job.

    Yes, but a sedentary job is NOT the same as a regular job, how can you compare the two?

    I ask you again, who's going to hire someone with no shoe or sock, that suffers from siezures, has no license to drive, and is wheelchair bound, can't use my (l) hand, both knees need surgery, need therapy on both shoulders/ wrists, (L) hip is going out. Remember I was on crutches for 7 years. Hence ALL the damage to hands,shoulders,wrists, left hip and left knee. They've taken a beating, to the point I can no longer use my hands for much of anything. I explained ALL this to the AME, yet he failed to mention it. He say's I suffer from NO pain, therefore NO 3% for pain, and NO future surgeries required. That's B.S. I can't accept that.

  9. #9
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    Default Re: Has This Been Over Turned

    dolphins#1
    Has This Been Over Turned
    No, in fact it has been upheld.

    08/20/2010 09:57:00 AM EST
    California: Almaraz/Guzman 2 Upheld

    Posted byNigel Scott Baker, Esq.
    http://www.lexisnexis.com/community/...-2-upheld.aspx

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

  10. #10
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    Default Re: Has This Been Over Turned

    Thanks Tony

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