RE: GEORGE THE BARTENDER AND AN AMA GUIDES CLARIFICATION OR BACK AT THE BAR, BE IT EVER SO BRIEFLY

FROM THE LOBBY BAR AT THE HYATT:

It was the Monday after the first day of summer and after months of staying safer at home I felt the need to enjoy a drink and unwind at an old familiar haunt, the Lobby Bar, as bars were slowly reopening after COVID-19 closures as long as social distancing rules were followed.

As I ambled in, I spied the breathtakingly beautiful Kim, and after exchanging some pleasantries requested a mint julep, one of my favorite summertime refreshments.2

I surveyed the room, and found two other regulars who had also returned, the infamous applicant attorney Ron Summers and noted defense attorney Frank Falls. They were off in a corner, having a conversation which looked like it could come to blows.

Having been mentored by Joe Truce to try and diffuse such heated situations, I went over to their table, making sure to maintain a safe distance. I asked what the argument was about this time, as the two probably would never agree on whether the sky was blue or whether a glass was half-empty or half-full.

Ron told me that he beat Frank to the Medical Unit, and obtained a chiropractic panel on a wrist/hand injury case. The chiropractor had rated the wrist based on range of motion, and the hand based on grip loss, exactly as the treating doctor had done. The consultative rating had combined the two. Ron was taunting Frank that his client was going to get slammed at the upcoming trial.

Frank looked at me hopefully, expecting that I would have Joe’s magic briefcase and could pull a case out of it to save the day. He was a little crestfallen to see that I only had my laptop in hand.

I asked to see the report, and read it, paying particular attention to the discussion of the AMA impairments. The QME merely listed the two impairments using their tables, without additional comment.

I told them that while I did not have Joe’s magic briefcase, I did have my laptop, and the details of their case reminded me a recent panel decision in Sumudu Jayasuriya v. San Francisco Bay Area Rapid Transit District (ADJ10440533) filed on April 20, 2020.3 I brought it up on the laptop screen for their perusal.

In Jayasuriya the applicant claimed an injury to their upper left extremity. The chiropractic QME issued two reports, noting in their first report a normal range of motion for the applicant’s left wrist and reduced grip strength in their left hand. The QME’s second report indicated that the applicant had a restricted left wrist range of motion resulting in a 6% upper extremity impairment, as well as reduced grip strength in their left hand to which the QME assigned 20% upper extremity impairment.

However, these reports were not backed up with any explanation as to why the QME decided to include a grip loss rating that was disallowed by the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides. The Workers’ Compensation Judge (WCJ) issued a Findings and Award in favor of the applicant anyway. Defendant then filed a Petition for Reconsideration, contending that a new panel was necessary and that the applicant’s disability rating should only be based on their loss of range of motion.

The Appeals Board granted the petition and essentially quoted the Guides on when grip loss can be used in addition to other upper extremity ratings. However, they noted that the PQME did not mention that the wrist loss of motion and the loss of strength were caused by “unrelated etiologic or pathomechanical causes” so the strict application of the Guides would not allow for combination of the impairments.

The Appeals Board then indicated that strict application was not necessary if the physician used their own judgment, and provided a supported Almaraz-Guzman analysis. The Appeals Board set forth the four-prong test derived from Milpitas Unified School District v Workers Comp. Appeals Bd. (Almaraz-Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal Comp Cases 837 as follows4:

To properly rate an injured worker’s disability using an Almaraz-Guzman analysis, the doctor is expected to: 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 alternate rating using the four corners of the AMA Guides, and 4) explain why the alternate rating more accurately reflects the applicant’s level of disability. (Id. at 828-829).

The Appeals Board panel found that since the QME did not explain why the strict rating using the Guides did not accurately reflect applicant’s disability, nor why combining the range of motion impairment with the grip strength impairment was a more accurate measure of applicant’s disability, the report did not comply with Almaraz-Guzman, and was therefore not substantial evidence upon which an Award could be based. Development of the record was ordered.

In some remarkable dicta, the Appeals Board noted that, in general, record development should first be supplemented by physicians who have already seen the injured worker, but in this case it might be in everyone’s best interest to select a different specialty. They also pointed out that the injury in this matter was limited to wrist and hand, the treatment was with orthopedic hand specialists and the Medical Unit has a special code for an orthopedic hand specialist. They suggested the parties either agree to an orthopedic hand specialist AME, request a QME in that specialty or request that the judge appoint an orthopedic hand specialist as a regular physician.

As Ron was left speechless and Frank was beaming, I waived to Kim to bring us another round. My work was done.

DISCLAIMER:

All characters at the Lobby Bar are fictional and the storyline is simply a product of my animated imagination.

We are still bound by the four corners of the Guides, unless a doctor can provide sound reasoning to justify their determination as to otherwise with an Almaraz-Guzman analysis. While Jayasuriya lacks the designation “significant panel decision,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

Outside of this brief respite to the friendly confines of the Lobby Bar, we continue to make our own doubles and vigorously wash our hands. Bottoms up, friends.

1 For those new patrons to the Lobby Bar, George the Bartender’s workers’ compensation case involves an injury to his elbow, epicondylitis (tennis elbow), sustained from the repetitive serving of martinis to Joe Truce. If there ever was an admitted industrial injury, this is it!

2 First conceived as a medicinal aid to ease gastrointestinal distress, the julep transitioned into a cocktail in the late 1700’s in the American South, predominantly enjoyed by the upper-crust of society as access to ice and the silver or pewter cup in which the drink is served was limited.

3 A copy of Jayasuriya can be obtained by email via email request.

4 Several discussions were had on Almaraz-Guzman in the Lobby Bar back in the day during 2009-2010. Milpitas in particular was discussed in the fall of 2010 in the edition titled Re: George The Bartender, The “List” And The Court Of Appeal Decision In Guzman Or Will You Be Left Standing When The Music Stops? A copy of Milpitas can be obtained by email via email request

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