Handouts

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Handouts

DEPOSITION TECHNIQUES,CASE
LAW UPDATE, AND UTILIZING THE
AMA GUIDES TO LOWER
IMPAIRMENT RATINGS
CWCDAA November 6, 2015
Kenneth Kingdon
Law Office of Kenneth Kingdon
Kingdon Rating Services
www.Kingdonrating.net
[email protected]
PH 310 968 1816
(c) 2015 Law Office of Kenneth Kingdon
1
PHYSICIAN DEPOSITIONS
LC Sec. 5708
• All hearings and investigations before the
appeals board or a workers’ compensation
judge … shall not be bound by the common
law or statutory rules of evidence and
procedure….
• Speaking objections allowed?
2
DEPOSITIONS: ISSUES THAT SHOULD
NOT BE RAISED
If the doctor analogizes a spine injury to
Table 6-9, the hernia table:
• Johnson v. State of California Department of
Transportation 2013 Cal. Wrk. Comp. P.D.
LEXIS 428
• Walton v. State of California, Department of
Corrections and Rehabilitation/CA State
Prisons/Los Angeles County 2013 Cal. Wrk.
Comp. P.D. LEXIS 467
3
NOT BE RAISED
• If the doctor provides a rating, such as an 8%
WPI spine rating using the DRE category II, but
does not explain why he chose 8% as opposed to
another rating within the category( i.e., a 5, 6, or
7% rating in the DRE category II)
• Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases
604 requires the applicant to prove the level of
permanent disability and justify why a certain
percent of function or percent of apportionment
was used (How and Why)
4
NOT BE RAISED
The doctor says, for example, that the applicant has lost
30% of the function of the lumbar spine and he
analogizes to Figure 15-19
He needs to explain why he chose 30%: The How and Why
criteria of Escobedo applies to permanent disability and
Almaraz/Guzman, not just to apportionment
• Constanza v. The Torrance Company 2012 Cal. Wrk.
Comp. P.D.LEXIS 564
• Rodriguez v. State of California, Dept. of Social Services
2012 Cal. Wrk. Comp. P.D. LEXIS 704
• Truitt v. County of San Diego 2013 Cal. Wrk.
Comp. 522
5
NOT BE RAISED
The orthopedist provides a rating for sleep
and sexual dysfunction and date of injury is pre
1/1/13
• Ponce v. Ashley & J Pharmacy Corp.
2013 Cal. Wrk. Comp. P.D. Lexis 73
• Post 1/1/13, per Section 4660.1, not ratable if
arising out of a compensable physical injury
6
NOT BE RAISED
When the doctor is shown that the Guides
requires a certain rating and the doctor states:
• I don’t think they know what they are doing
• I don’t follow the Guides
7
NOT BE RAISED
The doctor says that the applicant has diffuse
pain radiating to his or her leg, and awards a
DRE category II rating:
“Nonverifiable pain is pain that is in the
distribution of a nerve root but has no
identifiable origin, i.e., there are no objective
physical, imaging or electromyographic findings”
(Guides, page 382)(Emphasis supplied)
8
NOT BE RAISED
The doctor says that he used the DRE category II
based on asymmetry of motion in the spine
• According to the Guides (page 382)
asymmetry of motion is the inability to move
the spine in a desired plane of motion due to
guarding or spasm
9
NOT BE RAISED
The doctor uses the wrong criteria for a pain add-on
• Many if not most pain “add-ons” are not substantial evidence
• “The maximum amount of pain resulting from a single injury is 3%
regardless of the number of impairments resulting from that injury”
(PDRS, page 1-12)
• “Impairment ratings in the Guides have already accounted for
commonly associated pain” (Guides, page 10)
10
NOT BE RAISED
Pain (continued)
• According to the PDRS (The Rating Schedule)
The rating “may be increased by up to 3% WPI
if the burden of the worker’s condition has
been increased by pain-related impairment in
excess of the pain component already
incorporated in the WPI rating in Chapters 317” (page 1-12) (Emphasis supplied)
11
NOT BE RAISED
Pain (continued)
“Thus, if an examining physician determines that an
individual has pain-related impairment, he or she
will have the additional task of deciding whether or
not that impairment has already been adequately
incorporated into the rating …” (Guides, p. 570, and
also see Guides page 585, paragraph 5)
In other words, the maximum increase for pain is
3% WPI, but for any increase, the impact of the pain
on ADLs must be greater than what was anticipated
by the conventional rating
12
RATING PAIN BASED ON
ALMARAZ/GUZMAN
•
•
•
•
•
Purely Subjective Complaints are Ratable Using
Almaraz/Guzman (City of Sacramento v. WCAB
(Cannon)(2013) 79 Cal. Comp. Cases 1)
There are still the credibility and substantial evidence
defenses
Is the increase limited to 3% per Chapter 18?
The editors of the Guides recognize that pain can be
severely disabling, but choose to limit it to 3% WPI in
Chapter 18.
In Cannon the applicant was given 7% WPI by analogy, but
the defendant did not raise the issue of the 3% limit.
In Cannon, the Court classified the injury as a poorly
understood pain syndrome.
13
NOT BE RAISED
ROM vs. DRE Method for the Spine
Lee vs. Physicians Associates of Greater San
Gabriel 2015 Cal. Wrk. Comp. P.D. LEXIS 389
(citing Blackledge v. Bank Of America (2010) 75
Cal. Comp. Cases 613):
The WCJ has the authority to determine
whether to use the DRE or ROM method
14
NOT BE RAISED
Gunnar B.J. Andersson, MD, PhD, the Senior
Orthopedic Editor of the Guides Fifth, when
interviewed stated that
“Yes, the range of motion should only be used as stated
under 15.2.a 4 (p. 380) when there are fractures at more
than one level, when there is radiculopathy bilaterally or
at multiple levels, where there is multilevel motion
segment alteration, and when there is a recurrent disc
herniation or stenosis with radiculopathy. In other words,
it should not be used in cases of multilevel degenerative
disc disease.”
15
NOT BE RAISED
• Robert Haralson, MD, Chapter Chair of the
Spine chapters in the Fourth and Fifth Editions
of the Guides, when interviewed stated that
“Multilevel DJD is not rated by the ROM, only
multilevel radiculopathy.”
See: K. Kingdon, Using the Guides Fifth as Intended in California Workers
Compensation, San Pedro CA: Kingdon Publishing Inc., 2011, pages 3-4,
Question 5, and page 28, Question 13.
16
DECONDITIONING
• Being promoted by CAAA through its Pearls of
the AMA Guides
• Can result from inactivity due to pain, or
depression or loss of mobility
• Is it ratable using Table 5-8 (p. 101) and Table
5-12 (p. 107) in the pulmonary chapter, based
on the measurement of “METS” (metabolic
equivalents), which are tables used to
diagnose heart disease?
17
DECONDITIONING
Defenses:
• Speculative as the preinjury METS readings are not known
– Table 5-8 has estimated METS for different jobs
– CAAA has occupational tables with estimated METS
• Deconditioning expected and accounted for in the conventional
rating
• Its not a disease
• The treadmill test is subjective and its results speculative as it is
under the control of the applicant
• Full effort affected by impairments (knee injury etc.)
• Object to AA’s request to the doctor to perform the test and require
Order from the WCAB?
18
APPORTIONMENT
Apportionment Scenarios:
One body part with nonindustrial apportionment:
Example: An industrial lumbar spine injury in 2014
and a 2012 nonindustrial car accident injuring the
lumbar spine
Section 4663(c): If the doctor cannot make an
apportionment determination, he or she shall
consult with another physician or refer the
applicant to another physician to make the final
determination
19
APPORTIONMENT
One body part caused by multiple industrial injuries
• Benson v. WCAB (2009) 74 Cal. Comp. Cases 113
Must apportion between the industrial injuries
except for “limited circumstances”
• Acme Steel v. WCAB (Borman) 78 Cal. Comp. Cases
751(2013)
“Indeed, apportionment is excused only under
extremely ‘limited circumstances’” (published
Court of Appeals decision)
20
APPORTIONMENT
Sequelae (compensable consequence injuries)
• Fuentes v. World Variety Produce, 2015 Cal. Wrk.
Comp. P.D. LEXIS 280
Pursuant to section 4663(c) the internal QME and
psychiatric AME for the psychiatric and internal
sequelae of the orthopedic injury were ordered to
consult with other physicians and if necessary to
refer the applicant to another physician for a final
determination on the issue of apportionment.
21
APPORTIONMENT
Sequelae (compensable consequence
injuries)
• Dileva v. Northrop Grumman Systems Corp. 2015
Cal. Wrk. Comp. P.D. LEXIS 99
• The WCAB accepted the treating psychiatrist’s
determination that the multiple body parts were
inextricably intertwined, but also used the
treating psychiatrist’s determination to invalidate
the apportionment of the orthopedic AME.
22
APPORTIONMENT
Cause of Injury vs. Cause of Disability
Escobedo v. Marshalls (2005) 70 Cal. Comp.
Cases 604
“ The percentage to which an applicant’s injury
is causally related to his or her employment is
not necessarily the same as the percentage to
which an applicant’s permanent disability is
causally related to his or her injury.”
23
APPORTIONMENT
Cause of Injury vs. Cause of Disability
One Interpretation: Unless a factor that
contributes to the injury also becomes a factor
of disability, that is only a cause of injury, not a
cause of disability
24
APPORTIONMENT
Anderson v. Jaguar/Landrover of Ventura
2012 Cal. Wrk. Comp. P.D. LEXIS 327
• The applicant had a shoulder injury for which
he had shoulder surgery.
• He had a stroke during the surgery.
• He had preexisting diabetes, hypertension,
hyperlipidemia, and a 25 year history of
smoking.
• None of these factors were apportioned
25
APPORTIONMENT
• The WCAB stated in Anderson that there was no
basis in law or fact to apportion to risk factors
• That is a commonly used phrase by the WCAB
and by applicants
• Are not all potential and actual causes of injury
risk factors?
• What about preexisting obesity (pathology),
smoking (lifestyle/behavior), family history
(genetics)?
26
APPORTIONMENT
Genetics as a Risk Factor
Rice v. City of Jackson 2015 Cal. Wrk. Comp. P.D. LEXIS 57
• The WCAB rejected apportionment to genetic risk
factors, citing Escobedo ‘s holding that the cause of
injury might not be the same as the cause of disability.
• Also, the WCAB said that this would open the door “to
apportionment of disability to impermissible
immutable factors.” (?)
27
APPORTIONMENT
Brodie and Pullman Kellogg: California Supreme
Court Decisions
According to the Supreme Court in Brodie v. Contra Costa
County Fire Protection District (2007) 72 Cal. Comp. Cases
565, referencing the old law of apportionment:
“Under these rules, in case after case courts properly
rejected apportionment of a single disability with
multiple causes. (See, e.g., Pullman Kellogg v. Workers'
Comp. Appeals Bd., supra, 26 Cal.3d at pp. 454–455 [no
apportionment of lung injury between industrial
inhalation of toxic fumes and nonindustrial pack-a-day
smoking habit]” (Emphasis supplied)
28
APPORTIONMENT
The Court in Brodie stated further that :
“ The plain language of new sections 4663 and
4664 demonstrates they were intended to reverse
these features of former sections 4663 and 4750.
(Kleeman v. Workers' Comp. Appeals Bd. (2005)
127 Cal.App.4th 274, 284–285 [25 Cal. Rptr. 3d 448,
70 Cal. Comp. Cases 133].) Thus, new sections
4663, subdivision (a) and 4664, subdivision (a)
eliminate the bar against apportionment based on
pathology and asymptomatic causes …”
29
APPORTIONMENT
• Escobedo was issued 2005, Brodie was issued
2007.
• Brodie is inconsistent with the WCAB’s
position on cause of injury versus disability
and with the WCAB’s refusal to apportion to
risk factors such as genetics
30
APPORTIONMENT
Proximate Causation
South Coast Framing, Inc. v. Workers' Comp. Appeals Bd.,
2015 Cal. LEXIS 3896, 80 Cal. Comp. Cases 489
“Although Lab. Code, § 3600, refers to proximate cause, its definition in
workers' compensation cases is not identical to that found in the
common law of torts. In fact, the proximate cause requirement of §
3600 has been interpreted as merely elaborating on the general
requirement that the injury arise out of the employment. The danger
from which the employee's injury results must be one to which he or
she was exposed in the employment. All that is required is that the
employment be one of the contributing causes without which the
injury would not have occurred.”
31
APPORTIONMENT
Proximate Causation
As South Coast Framing indicates, proximate
causation is found in both Workers
Compensation case law and statutes.
In addition to the Brodie decision, proximate
causation is another reason that apportionment
should apply to all risk factors and why the
cause of injury versus cause of disability should
rarely, if ever, apply to limit apportionment
32
APPORTIONMENT AND SUBSTANTIAL
EVIDENCE
Escobedo requires the doctor to discuss:
• What are the factors of apportionment(i.e.,
degenerative disc disease)
• How and why these factors are causing
permanent disability,
• How and why they are responsible for the
(approximate) percent of disability found by the
doctor
Failure by the doctor to comment on these issues is
a red flag for defendants and needs to be addressed
by letter or deposition
33
ALMARAZ/GUZMAN
Discretion Given to Physicians by the Guides Itself
According to the Court, in the conclusion to Guzman III:
• “The Guides itself recognizes that it cannot anticipate and
describe every impairment that may be experienced by
injured employees. To accommodate those complex or
extraordinary cases, it calls for the physician's exercise of
clinical judgment to evaluate the impairment most
accurately, even if that is possible only by resorting to
comparable conditions described in the Guides.” (emphasis
supplied)
• Not a medical determination
34
ALMARAZ/GUZMAN
Required Criteria for Almaraz/Guzman
Per Guzman III (Milpitas)
• New Conditions
• Poorly Understood Pain Syndromes
• Impairments that the Guides has not
Anticipated or Described (also referred to in
Guzman III as Complex or Extraordinary)
35
ALMARAZ/GUZMAN
According to the WCAB in its Cannon decision (Cannon v. City
of Sacramento 2012 Cal Wrk. Comp P.D. Lexis 615) regarding the
complex or extraordinary language:
“Rather than further restrict a physician’s expertise, this language
should be read to reflect the ability of a physician 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.”
In other words, the WCAB said that the phrase complex or
extraordinary is not a criterion that must be met in order for a doctor
to use his or her discretion to provide an alternative rating.
36
ALMARAZ/GUZMAN
According to the Court of Appeals in Cannon
(City of Sacramento v. Workers Compensation
Appeals Board (2013)79 Cal. Comp. Cases 1)
“The city’s second argument is that under Milpitas
Unified, a rating by analogy under Almaraz/Guzman
is permissible only in complex or extraordinary
cases. The city asserts, ipse dixit that “plantar
fasciitis is neither complex nor extraordinary” and
therefore a rating by analogy was improper here.”
(Cont’d)
37
COMPLEX OR EXTRAORDINARY:
STILL A DEFENSE?
The Cannon Court then stated:
• “We agree with the board majority that this is an
unwarranted interpretation of the Sixth District’s
decision in Milpitas Unified.”
• Did the Court of Appeals agree that “complex or
extraordinary” essentially means nothing?
38
STILL A DEFENSE?
The Court then stated, in the next sentence:
• “What the Sixth District said was this: ‘The
Guides … cannot rate syndromes that are poorly
understood and are manifested only by
subjective symptoms . To accommodate those
complex or extraordinary cases, the Guides calls
for the physician’s exercise of clinical judgment to
assess the impairment most accurately.’”
• A rejection of the WCAB’s definition of complex
or extraordinary?
39
COMPLEX OR EXTRAORDINARY: STILL
A DEFENSE?
In the next sentence, the Court stated:
• “Thus, the Sixth District was using the term
‘complex or extraordinary cases’ to describe
syndromes that are ‘poorly understood and are
manifested only by subjective symptoms,’ which
the AMA Guides do not, and cannot, rate.”
• An affirmation, not a rejection of the requirement
that an impairment be complex or extraordinary.
• The Guzman III Court also referred to new
conditions and impairments not anticipated or
described by the Guides (Cont’d)
40
STILL A DEFENSE?
The Cannon Court then states:
• “It is undisputed that Cannon’s condition—
plantar fasciitis—is manifested only by his
subjective experience of pain. Thus, his condition
appears to fall right into the category of cases
the Sixth District was describing in Milpitas
Unified, where the AMA Guides ‘calls for the
physician’s exercise of clinical judgment to assess
the impairment most accurately.’” (Emphasis
supplied)
(Cont’d)
41
STILL A DEFENSE?
Summary:
• The Cannon Court said that the applicant’s plantar fasciitis was a
“poorly understood pain syndrome” (even though it is not)
• The Court correctly noted that in Guzman III, one
definition/element of “complex or extraordinary” is a poorly
understood pain syndrome (such as fibromyalgia)
• The Cannon court implicitly rejected the WCAB’s interpretation of
complex or extraordinary as meaning nothing
• They did not mention the two other criteria mentioned in Guzman
III; new conditions, or impairments not anticipated and described
by the Guides.
• Thus “complex or extraordinary” is one of the necessary criteria.
• In most cases, whether one of the three criteria has been met is a
legal issue.
42
ALMARAZ/GUZMAN
Example : Carpal Tunnel Syndrome and
Impairments not Anticipated and Described:
Per page 494 of the Guides, grip loss or loss of ROM
is not rated with compression neuropathies (such as
carpal tunnel syndrome) so that grip loss or loss of
ROM should not be rated with carpal tunnel
syndrome even with Almaraz/Guzman as they have
been anticipated and described by the Guides
43
ALMARAZ/GUZMAN
• Almaraz/Guzman requires a showing that this
applicant’s condition was not addressed
accurately in the Guides.
• The doctor cannot rewrite the Guides to
create a rating method that applies to all
applicant’s with a certain impairment
44
ALMARAZ/GUZMAN
Using the Guides as Intended
The Guzman III Court (and often the WCAB) quote
the following from the Guides (page 11)
‘“The physician’s judgment, based upon experience,
training, skill, thoroughness in clinical evaluation,
and ability to apply the Guides criteria as intended,
will enable an appropriate and reproducible
assessment to be made of clinical impairment.
Clinical judgment, combining both the “art” and
science of medicine, constitutes the essence of
medical practice.“’
(cont’d)
45
ALMARAZ/GUZMAN
What is the Intent of the Guides: Are the Guides just a
Guide?
• Page 4 of the Guides states that “The impairment criteria
outlined in the Guides provide a standardized method for
physicians to use to determine medical impairment.”
(Emphasis supplied)
• On page 12, the Guides states that “The Guides provide a
standard medical assessment for impairment
determination and may be used as a component in
disability assessment.”(Emphasis supplied)
46
ALMARAZ/GUZMAN
• On page 17, it states that “This chapter describes how to use the
Guides for consistent and reliable acquisition, analysis,
communication, and utilization of medical information through a
single set of standards.” (Emphasis supplied)
• On page 18, it states that “An impairment evaluation is a medical
evaluation performed by a physician, using a standard method as
outlined in the Guides to determine permanent impairment
associated with a medical condition.”(Emphasis supplied)
• The intent of the Guides is not that the doctor uses his or her
discretion to search the four corners of the Guides for a more
accurate rating.
47
Contra Costa County v W.C.A.B. (Dahl)
2015 Cal. Wrk. Comp. LEXIS 828.
Minimized or eliminated the use of vocational experts to provide a higher permanent
partial disability
• “Ogilvie signaled that it would be a rare case in which an applicant or employer
could rebut a scheduled rating. Yet under the WCAB's approach here, claimants
would be permitted to rebut their scheduled rating in virtually all cases where an
expert can provide a statistical analysis of a group of individuals he or she claims
is more similarly situated to the applicant than that identified in the Schedule.”
(Emphasis supplied)
• “The Ogilvie court did not sanction rebuttal of the statutory Schedule by a
competing empirical methodology—no matter how superior the applicant and her
expert claim it may be.”
• “To hold otherwise would mean every employee could now rebut their scheduled
rating using a LeBoeuf analysis, turning a limited exception into the general rule.
There is no indication Ogilvie intended the second rebuttal method to be so broad
and all-encompassing.”
• Does Almaraz/Guzman set up a competing methodology that permits a doctor to
reject the Guides rating as long as the doctor can justify an alternative rating?
(Position of the Court versus the WCAB)
48
ALMARAZ/GUZMAN
UNLISTED BODY PARTS
In Cannon according to the WCAB:
• “It must be emphasized that applicant's
condition, plantar fasciitis, does not have a
standard rating, with no specifically applicable
“chapter, table or method” provided in the
Guides, and thus can only be rated by analogy to
other impairments, and/or by analysis of the
injury’s impact on the activities of daily living.”
(Emphasis supplied)
49
ALMARAZ/GUZMAN
No Specifically Applicable “chapter, table or
method”
• The Chapter is Chapter 17, the Lower Extremities
Chapter
• The method is any of the 12 methods provided
for in the Chapter (including gait derangement,
ROM loss, strength loss)
• The table would be whichever table corresponds
to which of the 12 methods provided for in
Chapter 17 applies to the impairment being
rated.
50
ALMARAZ/GUZMAN
•
•
•
•
Most body parts and pathologies are not listed by
name in the Guides.
For example:
There is no list of impairments that can be rated using
loss of range of motion in Chapter 16,
or loss of range of motion or strength loss or limb
length discrepancy in Chapter 17.
or every pulmonary problem that is rated using Table
5-12
or every dermatologic problem that is rated using Table
8-2, etc.
51
ALMARAZ/GUZMAN
•
•
•
•
Figure 15-19
Rating the Spine by Analogy
Davis v. Walt Disney Company 2014 Cal. Wrk. Comp.
LEXIS 52
Laury 2011 Cal. Wrk. Comp. P.D. LEXIS 77
Wood 2010 Cal. Wrk. Comp. P.D. LEXIS 535)
In Davis, the WCAB incorporated the WCJ’s decision
which rejected the use of Figure 15-19, but also
rejected the doctor’s Almaraz/Guzman rating because
of inappropriate consideration of work functions
52
FIGURE 15-19 and OTHER
ALMARAZ/GUZMAN RATINGS
Universal City Studios v. Workers Comp. App.
Bd. (Lewis) (1979) 44 Cal. Comp. Cas. 1133 as a
defense to a large Almaraz/Guzman rating increase:
“ Guided by the teaching of Hale v. Morgan, simply
and basically stated, we conclude here that the
award is so disproportionate to the disability and
the objectives of reasonably compensating an
injured worker as to be fundamentally unfair.”
(Emphasis supplied)
53
FIGURE 15-19 and OTHER
ALMARAZ/GUZMAN RATINGS
“We judiciously notice by way of example that
had Lewis suffered the loss of an eye, she would
have been rated less disabled, i.e., 51%. If she
had suffered an amputation below the knee but
still able to work with a prosthesis, the disability
rating would have been 66 percent, only 5
percent more than her present rating of 61
percent for the sprained ankle.”
54
THANK YOU
55
Analysis of Current Case Law and Current Issues in Impairment and Disability Rating
Issue Number 14 • May–August 2015
IN THIS ISSUE
CURRENT CASE LAW
ADDING VS. COMBINING IMPAIRMENTS… 2
ALMARAZ/GUZMAN
Cannon v. City of Sacramento ……………… 19
Direct ADL Method ………………………… 19
APPORTIONMENT
Cause of Injury vs. Cause of Disability ……14
Conflicting Physicians …………………………17
Genetic Factors …………………………………14
Ogilvie ……………………………………………13
Substantial Evidence …………………………… 7
DRE VS. ROM METHODS ………………… 20
PHYSICIAN AUTHORITY
Opining On Issues Outside of the
Physician’s Expertise …………………………10
RANGE OF EVIDENCE …………………… 12
REDUCTION OF PERMANENT
DISABILITY UNDER SECTION 4056
Unreasonable Refusal of
Medical Treatment …………………………10
SUBSTANTIAL EVIDENCE
Familiarity of Treating Doctor
with Applicant ……………………………… 1
SYNERGISTIC EFFECT ……………………… 10
TOTAL PERMANENT DISABILITY
Labor Code Section 4662 ……………………… 2
VOCATIONAL EXPERT EVIDENCE
Substantial Evidence …………………………… 9
Total Permanent Disability …………………… 2
WCJ AUTHORITY
Range of Evidence …………………………… 12
TABLE OF CASES IN THIS ISSUE …… 22
SECONDARY CASES MENTIONED
IN THIS ISSUE …………………………… 22–23
CURRENT CASE LAW
SUBSTANTIAL EVIDENCE:
FAMILIARITY OF TREATING DOCTOR
WITH APPLICANT
Solano v. WCAB, Wal-Mart Associates, Inc. 80 Cal.
Comp. Cases 394; 2015 Cal. Wrk. Comp. LEXIS 38
Issue
❖
When does the opinion of a treating physician carry greater
weight than a QME’S opinion?
Disposition
The WCAB reversed the WCJ and rejected the rating of the
QME in favor of the treating physician’s rating, in part due to
the treater’s greater familiarity with the applicant’s condition.
Facts
The QME diagnosed a brachial plexus injury, which the WCAB
said was not supported by objective evidence. The WCJ also
relied on the opinion of the treater, Dr.Scheinberg, “because
Dr. Scheinberg was more familiar with Applicant’s condition
based on his years as her treating physician.”
Analysis
Physician Experience
The WCAB’s reliance in part on the treater’s long-term familiarity
with the applicant, although not the sole basis for its decision,
could be cited by applicants in other cases in which there is a
dispute between a QME and a treater.
The decision to rely on the treater in this case was due to there
being a dispute over a complex diagnosis, a brachial plexus injury.
In most cases, a WCJ’s decision will be based on which physician’s
2
May–August 2015
report provides the more accurate analysis based on
the objective findings and subjective complaints.
QMEs are generally considered more objective
and less biased, but in a complex case, familiarity
with the applicant could be a relevant factor.
In Castro v. Container Supply Co. 2015 Cal. Wrk.
Comp. P.D. LEXIS 179, the WCAB, in relying on
the findings of the treating physician rather than
those of the QME, noted that the Appeals Board
had previously stated that
… the Panel Qualified Medical Evaluator’s
opinion is entitled to no more or less
persuasive weight than the opinion of the
Issue No. 14
treating physician, and that the trial judge
must consider the entire record and
decide the facts and controversy based
upon substantial evidence in light of the
entire record …
and cited the following cases to support that
position: Cruz v. Petaluma Poultry Processors 2009
Cal. Wrk. Comp. P.D. 574; California Institute of
Technology/Jet Propulsion Laboratory v. WCAB
(Bonzo) (2010) 75 Cal. Comp. Cases 735 (writ
denied); Payless Shoesource, Inc. v. WCAB (Twine)
(2010) 75 Cal. Comp. Cases 1225 (writ denied);
and McLaurin v. Southern California Edison 2011
Cal. Wrk. Comp. P.D. LEXIS 8.
APPORTIONMENT: FIRST CASE ON SEQUELAE
TOTAL PERMANENT DISABILITY;
ADDING VS. COMBINING IMPAIRMENTS: SYNERGISTIC EFFECT;
VOCATIONAL EXPERT EVIDENCE AND TOTAL PERMANENT
DISABILITY;
LABOR CODE SECTION 4662;
APPORTIONMENT OF A COMPENSABLE CONSEQUENCE/SEQUELAE;
WCJ AUTHORITY
Los Angeles County Metropolitan Transportation Authority (aka Los Angeles
Metropolitan Transit Authority (LAMTA)) v. WCAB (La Count) 80 Cal. Comp.
Cases 470, 2015 Cal. Wrk. Comp. LEXIS 47
Issues
❖
❖
❖
❖
❖
❖
When to add versus combine impairments
WCJ authority: adding versus combining
impairments
Determining whether applicant is 100% PTD
per Section 4662 “according to the fact”
Vocational expert testimony
Total permanent disability criteria
Apportioning of a compensable
consequence/sequelae
Disposition
Defendant’s Petitions for Reconsideration and
Writ of Review were denied. The decision of the
WCJ that the applicant was 100% PD was upheld.
Facts
Orthopedic
The orthopedic AME found injury to the spine,
left upper extremity, and right hip.
He concluded that due to “their synergistic effect
on one another,” the impairments should be
added, not combined. They added up to 123%
WPI, but using the Combined Values Chart
(CVC), the rating was 80% WPI.
He concluded that the applicant was “PTD and
unable to compete in the open labor market.”
He also determined that there was 20%
nonindustrial apportionment, except for the
Issue No. 14
May–August 2015
cervical spine, which he determined was not
apportionable.
Internal and Psyche
The internal and psyche AMEs both determined
that apportionment of their compensable
consequence/sequelae injuries should follow the
orthopedic apportionment.
The internist concluded that even after factoring in
apportionment, the applicant would be 100% PD
(PTD).
The agreed vocational evaluator (AVE) determined
that the applicant “was unable to return to suitable
gainful employment … was not able to participate
in vocational retraining and … was 100% PTD.”
Analysis
This case provides applicants with multiple
arguments that can be used to justify a 100% PD
finding. It also provides a justification for adding
and not combining multiple WPI ratings, although
defendants do have valid defenses to many of
these arguments.
PTD Even After Apportionment
There are cases that support the ability of a physician
to determine that an applicant is 100% PD even after
the application of nonindustrial apportionment
(State of California Department of Transportation
v. WCAB (Edwards) 77 Cal. Comp. Cases 1023;
2012 Cal. Wrk. Comp. LEXIS 148, and Giroux
Glass Inc. v. WCAB (Hatley) (2012) 77 Cal. Comp.
Cases 730).
That was the conclusion of the internist in this
case, which, assuming that the internist provided
substantial evidence to support his conclusion,
provides a valid justification for the 100% PD
finding of the WCJ.
Adding vs. Combining Impairments and
Synergistic Effect
The orthopedist justified adding rather than
combining the multiple orthopedic ratings based on
their having a “synergistic effect on one another.”
3
For applicants, if a doctor uses the phrase
“synergistic effect,” this can arguably justify adding
rather than combining multiple impairments, in
the same way that “inextricably intertwined” has
become the phrase that justifies not performing a
Benson (Benson v. WCAB (2009) 74 Cal. Comp.
Cases 113) apportionment among multiple
industrial dates of injury.
However, the explanation for why there was a
synergistic effect, at least as the case was reported,
is very questionable.
The doctor said that the right hip and lumbar
spine injury necessitated the use of a cane, which
then resulted in a left upper extremity injury.
The injury to the left upper extremity in this case
is the sequelae/compensable consequence of the
hip and lumbar spine injury.
What the doctor appears to have done is to classify
any compensable consequence injury—in this
case, the left upper extremity sequelae—as having
a synergistic effect with the original injury, thereby
justifying adding rather than combining any
compensable consequence injury to the original
injury.
In other words, under this theory, every
compensable consequence injury would likely be
considered to have a synergistic effect with the
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4
May–August 2015
original injury. Psychiatric and internal injuries
secondary to an orthopedic injury would all be
considered to be synergistic, and their ratings
would be added, not combined, with the
orthopedic injury.
The issue should be whether multiple impairments,
either as a compensable consequence or all due to
one incident, have a synergistic effect. The issue
should not be that all compensable consequence
injuries are synergistic with the original injury, as
suggested by the doctor.
Issue No. 14
living, this should be noted,” although the tables in
Chapter 16 do not account for this possibility.
For lower extremities, Table 15-6(c) on p. 396 does
not recognize the synergistic effect of bilateral lower
extremity injuries. For example, the maximum
impairment for a lower extremity is 40% WPI, and
a bilateral amputation would rate 64% WPI by
combining the two 40% WPI ratings. But the
maximum rating for station and gait in Table 15-6(c),
which accounts for bilateral lower extremity
injuries, is only 60% WPI.
A compensable consequence injury, of course,
could have a synergistic effect with the original
injury. For example, an individual with a right hip
injury could develop a compensable consequence
left hip injury, and the bilateral hip injuries could
potentially have a negative synergistic effect, as
occurred in East Bay Municipal Utility District
(EBMUD) v. WCAB (Kite) (2013) 78 Cal. Comp.
Cases 213 (writ denied).
However, Table 17-5 (p. 529) in the lower extremities
chapter, recognizing the potential synergistic effect
of bilateral lower extremity impairments, awards up
to 80% WPI for gait derangement.
Many bilateral injuries, as in Kite, whether
occurring simultaneously from one injury or as
sequelae, could have a synergistic effect. A right
eye injury that results in overuse of the left eye
would have a synergistic effect on vision.
In Sweetman v. Bank of America 2014 Cal. Wrk.
Comp. P.D. LEXIS 510, the decision of an
orthopedist to add rather than combine a wrist and
a spine impairment was upheld despite a flawed
analysis by the doctor, who misstated the Guides
criteria when he said that only impairments that
overlap should be combined and that otherwise
they should be added.
Also, the Guides recognizes the synergistic effect of
unilateral versus bilateral hearing loss. Table 15-6(a)
and (b) recognizes that bilateral upper extremity
injuries have a synergistic effect, as the table rates
bilateral injuries higher than if each extremity were
rated separately and then combined or even added.
However, the doctor’s decision in La Count to
define all compensable consequence injuries as
having a synergistic effect with the original injury is
a medical-legal conclusion, not a medical conclusion,
that lacks substantial evidence to support it.
Expanding When to Add vs. Combine Impairment
Ratings
Even the Guides (Chapter 16, p. 435) recognizes
the potential synergistic effect of a bilateral injury,
noting that “If the total combined (italics in
original) whole person impairment does not seem
to adequately reflect the actual extent of alteration in
the individual’s ability to perform activities of daily
Expansion
The WCAB is expanding the principle of adding
bilateral impairments to situations beyond bilateral
impairments under certain circumstances.
Even under Almaraz/Guzman, a physician does
not have the authority to rewrite the Guides to
create a rule that applies to all applicants with a
given condition. That authority is limited to an
applicant’s unique circumstances for which the
Guides rating for that particular applicant might
not be accurate.
The Guides notes on page 19 that all (except
designated) impairments are to be combined unless
there is overlap, in which case, the overlapping
impairment is not rated. The doctor in Sweetman, in
his apparent rewriting of the Guides, determined
essentially that all impairments are to be added
unless there is overlap, in which case they are to
be combined. (Please refer to the discussion of
Sweetman in the previous issue of the newsletter,
Number 13, January-April 2015, pp. 1-7.)
Issue No. 14
May–August 2015
WCJ Authority: Adding vs. Combining
As noted above, in La Count the WCJ could have
found the applicant to be 100% PD based on the
internist’s determining that the applicant was
100% PD even after apportionment.
Instead, the WCJ determined that the applicant was
100% PD by adding rather than combining the
impairments from all the body parts. Combining
the impairments would have resulted in a 93%
WPI rating.
In a complex case such as this, where the applicant is
clearly 100% PD (according to multiple physicians
as well as the vocational expert), and where there is
a basis for a 100% finding even after apportionment,
it is not surprising that the WCAB did not challenge
the WCJ’s adding rather than combining the
impairments. The correct result was probably
reached, and there was little to gain by remanding
the case back to the WCJ.
However, WCJs should be very cautious about
exercising this discretion in other cases.
In Borela v. State of California Department of Motor
Vehicles 2014 Cal. Wrk. Comp. P.D. LEXIS 217,
which confirmed a physician’s ability to add rather
than combine impairments, the WCAB also ruled
that the WCJ had exceeded her authority by
adding rather than combining impairments and
found that action to be a usurpation of the
physician’s authority.
WCJ Authority: Section 4662
5
is not a medical or vocational opinion to support
the application of Section 4662, a WCJ will likely
not be upheld in exercising discretion and applying
the statute to find an applicant to be 100% PD
because that would be a decision for a medical or
vocational expert.
WCJ Authority and Vocational Experts
The vocational expert (AVE) found that the
applicant was “unable to return to suitable, gainful
employment based on his combined physical and
mental impairments … was not able to participate in
vocational retraining, and … was 100 percent PTD.”
The conclusions of the AVE were not cited by the
WCJ but were likely influential in confirming the
applicant’s level of impairment.
There has yet to be a decision determining what
effect the deletion of both ability to compete in the
open labor market and diminished future earning
capacity from the definition of permanent disability
(in Section 4660.1) has on the weight to be given
to the conclusion of a vocational expert.
WCJ Authority and Apportionment
With the multitude of issues in this case, the WCAB
did not comment on the decision of both the internist
and the psychiatrist to apportion their sequelae
consistently with the orthopedic ratings. The WCAB
has been very strict in rejecting physicians’ applying
the same apportionment of the original injury to
sequelae (Conen v. Blue Star Ready Mix 2015 Cal.
Wrk. Comp. P.D. LEXIS 97).
The WCAB also accepted the WCJ’s finding that the
applicant was 100% PD “in accordance with the fact”
per Section 4662. This provision is the statutory
equivalent of Almaraz/Guzman for 100% PD cases.
In some ways, it goes beyond Almaraz/Guzman in
that it is not limited to the four corners of the Guides
and may include factors such as DFEC, although
that may depend on how new Section 4660.1 is
interpreted by the WCAB and the courts.
On the other hand, the WCAB was admonished in
an unpublished decision for not requiring some
apportionment to a sequelae when the evidence
supporting it was clear (Radiator United States v.
WCAB 2015 Cal. App. Unpub. LEXIS 1089, 80
Cal. Comp. Cases 79).
In this case, there was substantial medical and
vocational evidence that the applicant was 100% PD,
so the application of Section 4662 appears to have
been appropriate. In other cases, however, if there
In La Count, the orthopedist found apportionment
to only some, not all, of the orthopedic body parts.
The apportionment analysis in these cases might
just be a math problem. For example, assume
Apportionment of a Compensable
Consequence/Sequelae Injury
6
May–August 2015
hypothetically that an applicant incurs a specific
and a CT lumbar spine injury, and that each injury
contributes equally to the applicant’s PD. However,
while the CT claim is 50% nonindustrial, the
specific injury is 100% industrial. If there is a
psychiatric sequelae caused by the orthopedic pain,
the apportionment would be 25% nonindustrial
and not 50% nonindustrial.
Usually, one would expect that the apportionment
of the sequelae should follow the apportionment
of the orthopedic injury, which is why there are so
many reported cases in which both physicians and
the WCJ apportioned the sequelae according to
the original orthopedic injury.
There are exceptions.
If, for example, a finger injury with a 2% WPI rating
is 100% industrial and causes depression because
the applicant was a musician and is now a QIW, and
there is a post-surgical lumbar spine injury with no
pain that is 50% industrial but is not contributing to
the depression, there would be no apportionment
of the psychiatric impairment to the orthopedic
injury since all the depression was caused by the
finger injury, which is 100% industrial.
In a recent case, Eliborio Mayorga vs. Dexter Axle
Chassis Group ADJ 364166; 3925942, the WCAB
rejected apportioning various sequelae to the
original orthopedic injuries.
Applicants can cite the language of the WCAB in
this case, which relied on the questionable theory
that “Causation of disability is not to be confused
with causation of injury.”
The WCAB stated further that
In this case, multiple doctors opined that
applicant’s injury to psyche and
hypertension were caused, in part, by
applicant’s orthopedic injuries. No doctor
provided a substantial opinion outlining
what portion of the psyche or hypertension
disability was caused by the orthopedic
injuries. For this reason, the psyche and
hypertension apportionment opinions do
not constitute substantial evidence.
Issue No. 14
It would seem that what the WCAB is looking for
is substantial evidence from a sequelae doctor to
support apportionment to the orthopedic injury,
but since they used the phrase “cause of injury vs.
cause of disability,” it is probably a good idea for
applicants to use that phrase when attacking
apportionment.
The WCAB’s further comment that “Where a
sequela is caused by the combined effects of
multiple orthopedic injuries, each individual
doctor must independently determine whether
apportionment from the orthopedic injuries
carries over to the sequela” suggests that rather
than focus on the cause of injury vs. cause of
disability standard, the WCAB will focus on
whether the sequelae physician has justified the
apportionment, although how difficult it will be
to satisfy this criterion remains to be seen.
There is a split of opinion among the
commissioners on the apportionment of a
sequelae, although it will assume less importance
as psychiatric disabilities are phased out.
In a split decision (Vivirito vs. City of Glendale
(2015) ADJ 7009099), the WCAB upheld the
apportionment of an internist who followed the
orthopedic apportionment. His comment was that
“The situation should be apportioned in the same
fashion as his orthopedic problems since this is
why he is taking the medication which is causing
the gastrointestinal problems.”
The majority cited the following cases in which
deference is given to an AME:
We presume that the agreed medical
evaluator has been chosen by the parties
because of his expertise and neutrality.
“[W]orkers’ compensation law favors
agreed medical [evaluators] in resolving
medical disputes fairly and expeditiously.”
(Green v. Workers’ Comp. Appeals Bd
(2005) 127 Cal.App.4th 1426, 1444 [70 13
Cal. Comp. Cases 294].) Therefore, an
agreed medical evaluator’s opinion should
ordinarily be followed unless there is good
reason to find that opinion unpersuasive.
Issue No. 14
May–August 2015
(Power v. Workers’ Comp. Appeals Bd.
(1986) 179 Cal.App.3d 775, 782 [51 Cal.
Comp. Cases 114]; Los Angeles Unified
School Dist. v. Workers’ Comp. Appeals Bd.
(Steele) (2000) 65 Cal. Comp. Cases 300,
301 (writ den.]; Siqueiros v. Workers’
Comp. Appeals Bd. (1995) 60 Cal. Comp.
Cases 150, 151 [writ den.].
However, while defendants can cite these cases
in an apportionment dispute, the decision will
more likely turn on substantial evidence and on
interpretation of the apportionment statutes
than on the weight to be given an AME.
The dissenting commissioner’s opinion in this case,
which will likely be in the majority in many of these
cases (see the Maverick case discussed below) was
that the explanation by the AME was not substantial
evidence. While the AME’s analysis would appear
sufficient, the dissent thought that an in-depth
discussion of why the applicant was taking the
anti-inflammatory medication was required.
7
The dissent also thought that there should be an
analysis of whether the 20% contribution of
nonindustrial factors to the orthopedic injury was
also a factor in the applicant’s need to take
medication.
That might seem to be obvious, but at a deposition
of a doctor reporting on a sequelae, defendants
should ask the doctor to go into detail to explain
his or her apportionment of the sequelae (as well as
of the orthopedic injury, if the deposition is of the
orthopedist) even though sometimes the basis for
the apportionment is so obvious that the defendant
might feel a little silly asking the question.
Although the dissenting commissioner might
seem to be imposing an unreasonable burden
on the doctor and the defendant, that is what
Escobedo (Escobedo v. Marshalls (2005) 70 Cal.
Comp. Cases 604) requires.
APPORTIONMENT: SECOND CASE ON SEQUELAE
APPORTIONMENT:
SUBSTANTIAL EVIDENCE
Maverick v. Marriott International 2015 Cal. Wrk. Comp. P.D. LEXIS 50
Issue
❖
What evidence is required from a psychiatrist
to justify apportioning a psychiatric sequelae
using the same apportionment percent as the
orthopedist?
Disposition
car accident for which the applicant was still receiving
treatment at the time of the industrial injury.
The psychiatric AME diagnosed the applicant with
a depressive disorder, an anxiety disorder, a pain
disorder, and opioid dependence.
Applicant’s Petition for Reconsideration was
granted, and the apportionment of the psychiatric
AME, who had apportioned according to the
orthopedic apportionment, was disallowed.
His apportionment analysis was that the applicant
“has a psychiatric disability 100% caused by his
orthopedic disability and apportioned as the
orthopedic specialists apportion his orthopedic
disability.”
Facts
Analysis
The orthopedic AME determined that the applicant’s
lumbar spine injury was 40% industrial from a
specific injury and 60% nonindustrial due to a prior
The WCAB stated that
… [the AME’s] apportionment
8
May–August 2015
determination does not constitute
substantial medical evidence. His single
sentence explanation, apportioning
according to the orthopedic specialists, is
not sufficient to establish “how and why”
40% of applicant’s psychiatric disability
was caused by the industrial injury. Dr.
Feldman’s discussion of apportionment
fails to “set form [forth] reasoning in
support of its conclusions,” as it lacks any
attempt at medical reasoning …
This quote from the WCAB should be cited by
applicants in future cases and is a warning to
defendants of what is needed to meet the
apportionment criteria.
The WCAB cited the following from Escobedo v.
Marshalls (2005) 70 Cal. Comp. Cases 604 at
621–622, which applicants might also want to cite
in an apportionment dispute, noting that in order
for a medical opinion on apportionment to
constitute substantial evidence:
… a medical opinion must be framed in
terms of reasonable medical probability, it
must not be speculative, it must be based
on pertinent facts and on an adequate
examination and history, and it must set
forth reasoning in support of its conclusions.
For example, if a physician opines that
approximately 50% of an employee’s back
disability is directly caused by the
industrial injury, the physician must
explain how and why [6] the disability is
causally related to the industrial injury
(e.g., the industrial injury resulted in
surgery which caused vulnerability that
necessitates certain restrictions) and how
and why the injury is responsible for
approximately 50% of the disability.
Issue No. 14
And, if a physician opines that 50% of an
employee’s back disability is caused by
degenerative disc disease, the physician must
explain the nature of the degenerative disc
disease, how and why it is causing permanent
disability at the time of the evaluation, and
how and why it is responsible for
approximately 50% of the disability.
The warning for defendants and physicians is to
address each specific apportionment factor
individually. Defendants should provide this
language from Escobedo in their AMA and QME
letters, and applicants should cite it if the issue
goes to litigation.
In this case, the AME determined that the
applicant suffered from depression, anxiety,
opioid dependence, and pain.
It is possible that the anxiety was principally caused
by a traumatic car accident and not a lifting incident
at work. The opioid dependence could have been
present at the time of the industrial injury and not
lit up. The pain level may have been increased
substantially by the industrial injury. This is the
type of analysis that the WCAB is now requiring.
Traditionally, this doctor’s apportionment analysis
would have been acceptable, as both the experienced
AME and the WCJ in this case believed it to be.
However, the WCAB has now taken a stricter view
of apportionment.
The defendant, who has the burden of proof on
apportionment, was not permitted to develop the
record on this issue even though the AME and the
WCJ believed that the apportionment met the
criteria for substantial evidence.
Issue No. 14
May–August 2015
9
VOCATIONAL EXPERT TESTIMONY AND SUBSTANTIAL EVIDENCE
Qazi v. The Boeing Company 2015 Cal. Wrk. Comp. P.D. LEXIS 233
Issue
❖
Impermissible factors in a vocational expert
analysis
Disposition
Defendant’s Petition for Reconsideration was
granted, and the vocational expert’s finding that
the applicant was 100% PD was overturned. The
case was remanded to the WCJ for further discovery.
Facts
The applicant was found to be 100% PD based on
the opinion of a vocational expert.
Analysis
The case was remanded for the following
deficiencies in the vocational expert’s report:
1. Failure to account for applicant’s nonindustrial
apportionment
In general, both applicants and defendants have a
significant burden to overcome with apportionment.
For defendants, physicians are required by the
WCAB to justify in detail why apportionment of a
sequelae should follow the apportionment of the
original injury.
For applicants, vocational experts traditionally
addressed only whether an applicant was 100% PD
and did not address apportionment, perhaps in part
because in the past it was difficult for defendants
to prove apportionment. But now, due at least in
part to apportionment being easier to prove, the
experts are being asked to incorporate nonindustrial
apportionment into their analysis.
That is proving problematic for vocational experts,
who are experts at determining an applicant’s level
of function but have minimal experience with or
guidance regarding how to account for
apportionment. How, for example, does a vocational
expert account for apportionment of a 100% PD
finding with a 60% PD orthopedic rating
contributed to by a specific and a cumulative
trauma injury with a 20% nonindustrial
contribution, and a psychiatric sequelae with a
50% PD rating with 30% nonindustrial
apportionment caused by a family tragedy?
Psychiatrists and internists for compensable
consequence injuries are struggling to determine
how to account for apportionment from multiple
sources, and it is not any easier for vocational
experts.
2. Medical Conclusions
The vocational expert reported that the applicant
had lack of concentration due to loss of cognitive
function. The WCAB noted that there was no
medical evidence to support that conclusion and
said that the vocational expert was addressing
issues outside of his expertise.
3. Retirement
The vocational expert needed to address whether the
applicant was still actively seeking employment in
the job market or had retired, an issue that
defendants should raise when appropriate.
4. Market Search
The vocational expert limited the search to the Los
Angeles area, but the WCAB said that he should
have done a statewide search. They also stated that
if the applicant was limited to the Los Angeles area,
that would be a nonindustrial factor to consider.
10
May–August 2015
Issue No. 14
REDUCTION OF PERMANENT DISABILITY UNDER SECTION 4056
Hanker v. City of Stockton 2015 Cal. Wrk. Comp. P.D. LEXIS 192
Issue
❖
Unreasonable refusal of medical treatment
resulting in reduction of PD under Section 4056
Disposition
The WCAB denied applicant’s Petition for
Reconsideration and upheld the WCJ, who
determined that under Section 4056 the applicant’s
unreasonable refusal of medical treatment justified
a reduction of the permanent disability award.
Facts
The applicant had cardiac arrhythmia, which was
given an 80% PD rating. If she were to undergo an
ablation, a mild invasive procedure considered
safe by the reporting physicians, the likely PD
rating would be 0%. The applicant had previously
undergone a similar, possibly less safe procedure
without any problems.
Analysis
According to Section 4056, no compensation is
payable if disability is caused, continued, or
aggravated by an unreasonable refusal to submit
to medical treatment or to any surgical treatment
if the risk is inconsiderable in view of the
seriousness of the injury.
It is rare that Section 4056 is applied to reduce the
PD award of an applicant. Most procedures and
even medications carry enough risk to justify an
applicant who does not want to risk injury to
reject the treatment.
In this case, however, the evidence was that the
treatment would likely have reduced the 80% PD
award to 0%. Also, significantly, the applicant had
previously undergone a possibly riskier procedure.
The WCAB might have considered the possibility
that the applicant could settle the case for the 80%
PD and then obtain the surgery on her own.
While this case can be cited by defendants to argue
for reducing an applicant’s PD rating when treatment
is rejected, it is probably an outlier case, limited to
its unusual and equitable considerations.
Had utilization review (UR) rejected the ablation
procedure, the applicant would likely have prevailed.
PHYSICIAN AUTHORITY:
OPINING ON INJURIES OUTSIDE OF THE DOCTOR’S MEDICAL
EXPERTISE;
SYNERGISTIC EFFECT OF DIFFERENT SPECIALTIES
Dufresne v. Sutter Maternity & Surgery Center of Santa Cruz 2014 Cal. Wrk. Comp.
P.D. LEXIS 710
Issue
❖
Can physicians opine on areas outside of their
expertise?
Disposition
The WCAB upheld the WCJ, who found that the
applicant was 100% PD based on the physical
medicine and rehabilitation/pain AME, who
Issue No. 14
May–August 2015
determined the rating based on both the applicant’s
orthopedic as well as psychiatric injuries.
Facts
The physical medicine AME stated that applicant’s
100% permanent disability rating was due to the
“synergistic effect” of her physical and psychological
injuries. There was also a psychiatric AME on the
case.
Analysis
Synergistic Effect
Recently, a physician’s use of the term “synergistic
effect” has been used to justify a number of
questionable conclusions. In La Count (discussed
above in this issue of the newsletter on pp. 2–7), the
physician justified adding rather than combining
multiple impairments by apparently inappropriately
defining all compensable consequence injuries as
being synergistic with the original injury.
In this case, the physical medicine AME justified a
100% PD award by determining that there was a
synergistic effect between the orthopedic and
psychiatric injuries. That is a proper use of the
synergistic concept, but it is generally done by a
vocational expert, and this doctor was opining on
the effect of a specialty outside of his area of
expertise.
While the use of “synergistic” to justify various
departures from accepted practice is not always
valid, there is case law supporting its use, so
applicants should achieve some success with these
“buzzwords” in the same way that the phrase
“inextricably intertwined” has benefited applicants.
There were complex factual and legal issues in this
case, but it is included only for the issue of the
physical medicine doctor determining the PD
rating by incorporating the psychiatric AME’s
impairment rating.
This is a good case for applicants to cite to justify a
physician incorporating opinions of physicians in
11
other specialties into their rating by classifying the
impairments as synergistic. However, a different
WCAB panel or a Court of Appeals panel is likely
to find that the doctor’s conclusions lack
substantial evidence.
The California Supreme Court in Zemke v. WCAB
(W.S. Shamban and Company) (1968) 33 Cal.
Comp. Cases 358 stated what seems logical, which
is that “a medical opinion extended beyond the
range of the physician’s expertise, cannot rise to a
higher level than its own inadequate premises.”
It would seem difficult to justify an orthopedist
incorporating a psychiatric impairment into his or
her rating, or using the psychiatric evidence to
provide a vocational opinion, as was done in this
case. Usually, vocational expert testimony is
necessary to determine the effect of injuries that
involve multiple specialties. This doctor’s specialty
included the terms rehabilitation/pain medicine,
so perhaps his expertise included psychiatry.
However, even if it did, there was also an AME in
psychiatry in this case. (On a tangential point,
some applicant attorneys will use a panel physical
medicine doctor to avoid defendants’ objections to
their use of a chiropractor.)
In another case with multiple issues and complex
facts, Maghuyop v. Hull’s Walnut Creek Chapel
2013 Cal. Wrk. Comp. P.D. LEXIS 613, a similar
conclusion on behalf of the applicant was reached
by the WCAB. This gives applicants two cases to
support this argument, although in Maghuyop,
the WCAB incorporated the Report and
Recommendation of the WCJ by reference, so it is
not clear which of the several issues in the case was
the basis for approving the finding of the WCJ.
However, a contrary result was reached in Ecoffey
v. WCAB (2014) 79 Cal. Comp. Cases 469, in
which two physicians’ reports together rated less
than 100% but each physician incorporated the
other physician’s report into their rating to find
the applicant 100% PD. The WCAB rejected the
100% PD rating.
12
May–August 2015
Issue No. 14
WCJ AUTHORITY:
RANGE OF EVIDENCE
Varguez v. I/O Controls Corporation 2015 Cal. Wrk. Comp. P.D. LEXIS 30
Issue
❖
When can a WCJ utilize range of evidence?
Disposition
Applicant’s Petition for Reconsideration was
denied, but neither party nor the WCAB objected
to the WCJ “cherry-picking” the most accurate
evidence from both the orthopedic QME and
orthopedic treater.
Facts
The WCJ utilized most of the ratings from the
QME but also relied on the treating doctor’s AOE/
COE determination for the lumbar spine and on
the treater’s ROM measurements of the shoulder.
Analysis
Range of evidence can have multiple meanings. In
Coleman Burke v. WCAB (Burton) (2014) 79 Cal.
Comp. Cases 713, a controversial decision, the WCJ
was permitted to choose a PD rating between the
100% PD rating found by the vocational expert
and the 53% PD rating found by the examining
physicians. That seems an outlier case that conflicts
with the en banc decision of Blackledge v. Bank of
America 75 Cal. Comp. Cases 613; 2010 Cal. Wrk.
Comp. LEXIS 74, which details the authority of
physicians, WCJs, and DEU raters.
Also, in Malhotra v. State of California Dept. of
Developmental Services 2012 Cal. Wrk. Comp. P.D.
LEXIS 143, a WCJ who rated grip loss that the
examining physician had not rated was said to be
usurping the role of the physician and going
beyond the WCJ’s authority.
However, in NBC Universal Media LLC v. WCAB
(Moussa aka Andramos) 2014 Cal. Work. Comp.
P.D. LEXIS 4, a case similar to Varguez, the WCJ
cited “range of evidence” to justify picking and
choosing the most accurate information from two
medical reports. The basis for this approach in NBC
was that while each report contained conclusions
that lacked substantial evidence, the other report
was substantial evidence on those issues.
Varguez has similar facts in that the WCJ determined
that the treater’s report was substantial evidence on
the few issues that the QME had not adequately
addressed. The WCJ described some of those QME
conclusions as “not supported by the record,”
“not persuasive,” “inappropriate,” or “lacking in
objective support.”
The WCJ also used language such as “more
persuasive,” which perhaps should be avoided as it
implies that the WCJ may be picking between two
valid ratings to find the one that is more accurate,
rather than picking between a rating that is
substantial evidence and one that is not.
Normally a WCJ will pick between reports,
choosing the better reasoned and more persuasive
one, not choosing items within multiple reports.
Picking and choosing specific conclusions
between reports—which is the exception to the
rule, at least based on these panel decisions—is
only done when there are substantial evidence
problems with some of the conclusions in each
report that the other report can cure.
Issue No. 14
May–August 2015
13
OGILVIE AND APPORTIONMENT
Walter v. International Capital Group 2015 Cal. Wrk. Comp. P.D. LEXIS 32
Issue
❖
How to account for apportionment with an
Ogilvie analysis
Disposition
Applicant’s Petition for Reconsideration was granted.
The decision of the WCJ, that the applicant had not
met her burden under Ogilvie based on the two
vocational experts’ opinions lacking substantial
evidence, was overturned. The case was remanded
for the parties to agree on a new vocational expert
or, failing that, for the WCJ to appoint an
independent expert.
Facts
The reports of both vocational experts were found
to lack substantial evidence. The defendant’s expert
had not reviewed all of the medical reports, and
the applicant’s expert had not accounted for
nonindustrial apportionment. The WCAB
indicated that “the evidence does appear to
support increased disability beyond that found
on a medical basis,” so they kept discovery open.
Analysis
This case illustrates why it is so difficult for
applicants to increase a disability rating using an
Ogilvie analysis.
While Ogilvie created a new benefit, namely the
ability to increase permanent partial disability,
vocational experts cannot consider either language
or education levels in their analysis. In this case,
for example, if the applicant had lost 80% of her
preinjury earning capacity, the vocational expert
could not factor in the applicant’s level of
education, so she would be considered able to
perform the same job as a person with more
education, such as a lawyer, doctor, accountant,
etc., to determine her earning capacity.
The inability to consider either language or
education levels made it more difficult to find an
applicant 100% PD as well.
For a 100% PD finding, the applicant needs to be
totally disabled medically, which either a
physician or a vocational expert can determine
using Section 4662 “according to the fact.”
The need for transferrable skills analysis is
diminished and may be irrelevant.
Making the calculation even more difficult,
vocational experts are now required to apply
nonindustrial apportionment to their finding. In
this case, the applicant’s vocational expert failed to
account for the apportionment found by the
orthopedic AME.
The applicant had injuries to the neck, right
shoulder, lumbar spine, psyche, and headaches.
Even if the only orthopedic injury was to the
applicant’s lumbar spine, there would be questions
about how that apportionment should be applied
to the headaches and psychiatric sequelae because
that is an unsettled area and the subject of
substantial litigation.
Also, even if the apportionment percentages are
agreed on, it is not clear how the vocational expert
is expected to account for the apportionment.
Since ADLs exclude work, the vocational expert
would probably have to account for the impact of
the injury on work restrictions and then attempt
to factor in the nonindustrial apportionment. If
there is a 20% nonindustrial finding, does the
vocational expert subtract that from the 100%
rating? If it is simply a matter of subtraction, why
does the WCAB reject vocational expert reports
that do not address apportionment? Can the
vocational expert determine that the applicant is
100% PD even after subtracting apportionment,
as physicians may do?
14
May–August 2015
Issue No. 14
APPORTIONMENT:
CAUSE OF INJURY VS. CAUSE OF DISABILITY;
GENETIC FACTORS
Rice v. City of Jackson 2015 Cal. Wrk. Comp. P.D. LEXIS 57
Issues
❖
❖
Apportionment to genetic risk factors
Apportionment to cause of injury vs. cause of
disability
Disposition
Applicant’s Petition for Reconsideration was granted.
The WCJ’s decision permitting apportionment to
genetic risk factors was overturned.
Facts
The WCJ accepted the doctor’s apportionment of
the applicant’s cervical spine disability to genetics.
The apportionment rationale was explained in detail
by the doctor and was supported by multiple
published articles, so there was no claim that his
rating was not supported by evidence-based medicine.
Analysis
Applicants can cite this case to argue that
apportionment to genetic factors is illegal.
This is not the only panel decision rejecting
apportionment to genetic factors (Hunter v. Dept.
of Mental Health (2013) 41 CWCR 173).
Among other similar cases, applicants can also
cite Anderson v. Jaguar/Landrover of Ventura 2012
Cal. Wrk. Comp. P.D. LEXIS 327, in which the WCAB
went even further by rejecting apportionment to
nongenetic risk factors. In Anderson, the applicant
had surgery for an injured shoulder that resulted
in a stroke, and no apportionment was permitted
to his nonindustrial diabetes, hypertension, or
smoking, all of which contributed to the stroke.
Substantial Evidence
The doctor in Rice supported his finding of
apportionment to genetic factors by reference to
published articles. There was no claim that he did
not provide substantial evidence to support the
apportionment analysis.
However, the WCAB said that it is not legal to
apportion to genetic factors. They also cited
Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases
604 for the issue that the cause of injury might not
be the same as the cause of disability.
Impermissible Immutable Genetic Factors
One basis for rejection of the apportionment to
genetic factors by the WCAB was that it “opens
the door to apportionment of disability to
impermissible immutable factors.”
Perhaps the WCAB is concerned that allowing
apportionment to any genetic factors will result in
apportionment to suspect classes such as race and
gender. Apportioning to those suspect classifications
would be illegal, so that should not be a concern
for the WCAB if that is what they meant by their
reference to “impermissible immutable factors.”
Spondylolisthesis, scoliosis in the spine, birth
without a limb, or amputations are immutable
factors that are apportionable.
Perhaps the WCAB is referring to family history,
but it seems reasonable that, for example, if every
male in an applicant’s family for generations died of
heart disease by the age of 45 and if the applicant
is diagnosed with heart disease at age 40, there
should be some apportionment to the immutable
factor of a genetic predisposition to heart disease.
It is not clear what the concerns of the WCAB are,
and perhaps this will be further explained in a
future case. In the interim, however, this is a
questionable decision.
Issue No. 14
May–August 2015
15
Cause of Injury vs. Cause of Disability; Specific
Debilitating Factors
cited by the WCAB in either Reyes or Escobedo to
justify or explain this theory created in Escobedo.
Another basis for the WCAB’s rejection of
apportionment to genetic factors is based on a
comment in the en banc Escobedo decision, in
which the WCAB stated that
The WCAB in Anderson interpreted these comments
in Escobedo as prohibiting apportionment to any
risk factors that cause injury but do not contribute
to the disability. For example, preexisting arthritis
that is aggravated at work will be present at MMI
and will be contributing to the disability, as
opposed to an applicant’s diabetes, smoking, or
hypertension, which in Anderson contributed to
the applicant’s stroke but allegedly not to the
disability from the stroke at MMI.
Thus, the percentage to which an
applicant’s injury is causally related to his
or her employment is not necessarily the
same as the percentage to which an
applicant’s permanent disability is causally
related to his or her injury. The analyses of
these issues are different and the medical
evidence for any percentage conclusions
might be different.
The basis for this distinction between cause of
injury vs. cause of disability, according to the
WCAB in Escobedo, was a comment in a panel
decision (Reyes v. Hart Plastering (2005) 70 Cal.
Comp. Cases 223 (Significant Panel Decision)).
In Reyes, which was decided right after the
implementation of SB 899, the WCJ had
incorrectly applied the new Section 4663
apportionment statute to an AOE/COE issue.
The applicant in Reyes had a nonindustrial seizure
at work and fell and was injured. The WCJ in
Reyes held that, based on Section 4663, which
apportions to causation, there was no injury.
Because the seizure was nonindustrial, the WCJ
determined that the cause of the injury was
nonindustrial.
However, even had the WCJ relied on Section 3600
rather than Section 4663 to decide the case, the
decision of the WCJ presumably would have been
the same because the WCJ believed that the cause
of injury was the nonindustrial seizure. Other
than the WCAB noting in Reyes that the correct
statute should be applied in all cases (Section 3600
versus Section 4663), there are no facts in Reyes
that justify making a distinction between cause of
injury and cause of disability.
In Escobedo itself, the cause of injury versus the
cause of disability was not an issue. It was mentioned
only as a general principle, so there are no cases
However, the rationale in Anderson, Hunter, and
Rice is contrary to the holding in the 2007
California Supreme Court case of Brodie v. Contra
Costa County Fire Protection District 72 Cal.
Comp. Cases 565.
It also is contrary to the well-established and
widely applied principle of proximate causation,
both of which are discussed below.
Brodie
According to the Supreme Court in Brodie,
referring to the pre–SB 899 law on apportionment:
Under these rules, in case after case courts
properly rejected apportionment of a
single disability with multiple causes. (See,
e.g., Pullman Kellogg v. Workers’ Comp.
Appeals Bd., supra, 26 Cal.3d at pp.
454–455 [no apportionment of lung injury
between industrial inhalation of toxic
fumes and nonindustrial pack-a-day
smoking habit] …
In other words, historically, apportionment to
factors such as smoking was not permitted.
However, the Court in Brodie, discussing the new
apportionment statutes stated further that
The plain language of new sections 4663
and 4664 demonstrates they were
intended to reverse these features of
former sections 4663 and 4750. (Kleeman
v. Workers’ Comp. Appeals Bd. (2005) 127
Cal.App.4th 274, 284–285 & fns. 25–27
16
May–August 2015
[25 Cal. Rptr. 3d 448, 70 Cal. Comp. Cases
133].) Thus, new sections 4663,
subdivision (a) and 4664, subdivision (a)
eliminate the bar against apportionment
based on pathology and asymptomatic
causes …
In other words, apportionment to factors such as
smoking, whether or not they are what the WCAB
terms a “specific debilitating factor” or a factor
“contributing” to disability, is permitted. Brodie
would seem to provide clear evidence that
Anderson, Rice and Hunter, which prohibit
apportionment to factors allegedly contributing to
injury but not to disability, were wrongly decided.
Escobedo was issued in 2005, and Brodie was
issued in 2007. The holding in Brodie implicitly
overrules the cause of injury vs. cause of disability
holding in Escobedo and effectively overrules
Anderson by permitting apportionment to factors
such as smoking and, by extension, hypertension,
diabetes, and genetics. It may be difficult to find
examples where a factor is a cause of injury and
not of disability, especially when factoring in the
principle of proximate causation, discussed below.
Causation
Section 4663(a) states that “Apportionment of
permanent disability shall be based on causation.”
In addressing the issue of when an impairment’s
percentage contribution to injury is different from
its contribution to disability, the WCAB appears
to be ignoring the principle of causation/
proximate causation.
Section 3600
Recently, in South Coast Framing, Inc. v. WCAB
80 Cal. Comp. Cases 489, 2015 Cal. Lexis 3896,
the California Supreme Court analyzed the
concept of proximate causation as it is applied in
the workers compensation system.
Issue No. 14
The case was a reminder that the principle of
proximate causation is integral to the workers
compensation system.
The term “proximate causation” is used in Section
3600, while Section 4663 uses the term
“causation.”
However, regardless of how causation/proximate
causation is defined, it should result in any
nonindustrial factor—whether symptomatic or
asymptomatic, or a risk factor including
genetics—being apportionable if it is a cause of
injury.
Summation
As noted, the holding in Escobedo regarding cause
of injury vs. cause of disability may be conclusory
and lack substantial evidence as neither Reyes, the
only case relied on by the WCAB in Escobedo to
support this theory, nor Escobedo itself has facts
that involve this issue. Perhaps there are cases
other than Reyes that the WCAB could have cited
to justify this theory.
However, even if there are possibly some situations
in which the cause of injury is different from the
cause of disability, according to the Brodie Court
that would not prevent factors such as smoking,
hypertension, and diabetes, or similar risk factors,
including genetic factors, from being apportionable
even if they contributed, for example, to a stroke
but were not specific debilitating factors after the
stroke.
When the WCAB in Escobedo announced the
theory of “cause of injury vs. cause of disability,”
they may not have considered proximate
causation, which is embedded not only in
common law but in California workers
compensation statutes and case law as well.
Issue No. 14
May–August 2015
17
APPORTIONMENT:
CONFLICTING PHYSICIANS’ OPINIONS
Dileva v. Northrop Grumman Systems Corp. 2015 Cal. Wrk. Comp. P.D. LEXIS 99
Issue
❖
If an orthopedic AME makes a Benson
apportionment, can it be invalidated by a
treating psychiatrist who determines that the
psychiatric sequelae is inextricably intertwined
among the multiple injuries?
Disposition
In a split decision, the WCAB rejected defendant’s
Petition for Reconsideration and upheld the decision
of the WCJ. The orthopedic AME’s Benson
apportionment (Benson v. WCAB (2009) 74 Cal.
Comp. Cases 113) was invalidated by the opinion
of the treater for the psychiatric sequelae, who
concluded that the dates of injury were inextricably
intertwined. This prevented a Benson apportionment
among multiple industrial dates of injury.
Facts
The orthopedic AME did a Benson apportionment
among multiple orthopedic dates of injury. The
treater for the psychiatric sequelae was not able to
apportion among the dates of injury, finding them
inextricably intertwined. The WCAB rejected the
orthopedic AME’s apportionment and found no
Benson apportionment.
Analysis
This is a very good case for applicants, although
other panels or courts might not agree with this
questionable decision.
Substantial Evidence
The dissent believed that the treater’s apportionment
determination was conclusory in that his only
analysis on the issue was:
While I see multiple dates of orthopedic
injury, I believe it would be speculative to
attempt to apportion the permanent
psychiatric disability between the various
injury dates. Thus, 100% of the permanent
psychiatric disability is due to the
combined effects of all dates of injury,
which are inextricably intertwined.
The doctor’s opinion does not appear to provide
substantial evidence to support his opinion.
The dissent also cited Labor Code 4663(c), which
states:
If the physician is unable to include an
apportionment determination in his or
her report, the physician shall state the
specific reasons why the physician could
not make a determination. … The
physician shall then consult with other
physicians or refer the employee to
another physician … in order to make the
final determination.
The dissent would apply Section 4663(c) to a
Benson apportionment among industrial injuries
as well as to apportionment to nonindustrial
factors, something the commissioners do not
agree on. But there are other reasons not raised by
the dissent (discussed immediately below) why
the majority’s reasoning might not be followed in
future decisions.
AME vs. Treating Physician
The priority given to a treater over an AME, even
if they are experts in different specialties, is
perhaps the most surprising result of this case.
The opinions of an AME are entitled to substantial
weight absent a showing that they are based on an
incorrect factual history or legal theory, or are
otherwise unpersuasive in light of the entire
record (Power v. WCAB (1986) 51 Cal. Comp.
18
May–August 2015
Issue No. 14
Cases 114, Siqueiros v. WCAB (1995) 60 Cal.
Comp. Cases 150 (writ den.)). Not so for the
treating physician.
physical does not somehow give the treater’s
opinion priority over an AME or over any other
physician.
Additionally, there is a presumption that the AME
has been chosen by the parties because of his or
her expertise and neutrality (Green v. WCAB
(2005) 70 Cal. Comp. Cases 294). Again, not so
for the treating physician.
It is not clear why a sequelae, which is a
compensable consequence and not a new or
separate injury, should control how the original
injury is apportioned.
An AME’s opinion should ordinarily be followed
unless there is good reason to find that opinion
unpersuasive (Power, supra; Los Angeles Unified
School Dist. v. WCAB (Steele) (2000) 65 Cal.
Comp. Cases 300; Siqueiros, supra). Not so for a
treating physician.
There was no challenge to the validity of the
AME’s apportionment. However, the AME’s valid
apportionment was invalidated by the opinion of
a treater of a sequelae.
At the very least, the orthopedic disability should
probably have been apportioned among the three
dates of injury, per the AME, and then the
psychiatric impairment could be apportioned to
whichever date of injury gave the applicant the
highest rating.
However, even that approach is questionable. Why
was priority not given to the AME so that the
treater’s apportionment, not the AME, was
disregarded?
Panel QME
The majority believed it to be “significant” that the
defense had failed to request a panel QME on the
psychiatric issue.
However, had the defense requested a QME who
then found the dates of injury to be inextricably
intertwined, the results would have been the same
based on this analysis, and the AME’s valid
apportionment would still have been disregarded.
Also, a failure of a party to depose a physician
does not convert an opinion by that physician that
lacks substantial evidence into an opinion that is
substantial evidence. And not deposing a treating
Significance
As the number of ratable psychiatric injuries
declines per SB 863, this case will have less of an
impact.
It is also a very questionable decision, which a
different WCAB panel or Court of Appeals panel
might see differently. In future cases, one would
expect the orthopedic impairment to be
apportioned according to the orthopedic AME
even if the psyche sequelae is evaluated by another
AME.
There may be some other unresolved issues that
arise with Benson cases, such as whether the last
date of injury is always the date to be used for
inextricably intertwined injuries.
Applicants can cite this case any time any doctor,
treater, QME, or AME determines that
apportionment among multiple dates of injury are
inextricably intertwined in order to invalidate the
Benson apportionment of any other doctor or
doctors, including AMEs.
Based on this decision, an applicant can get a
treating doctor’s report for a sequelae that has
minimal impairment, such as a minor
gastrointestinal impairment, and use that to
invalidate the Benson apportionment made by an
orthopedic AME for a severe orthopedic injury.
If this decision is given any validity, which it
probably should not, then for injuries after 1/1/13,
applicants might also consider using a psychiatrist
to rebut the Benson apportionment of an
orthopedist. That does not appear to be prohibited
by Section 4660.1 even if the psychiatric PD is not
ratable—although, of course, the applicant has to
have a legitimate psychiatric injury.
Issue No. 14
May–August 2015
19
ALMARAZ/GUZMAN;
CANNON V. SACRAMENTO;
DIRECT ADL METHOD
Smith v. County of Sacramento 2015 Cal. Wrk. Comp. P.D. LEXIS 205
Issue
❖
Criteria for an Almaraz/Guzman rating
Disposition
denied. The Almaraz/Guzman rating used by the
AME was accepted.
Facts
The AME determined that a strict Guides rating
was not accurate. Citing Almaraz/Guzman, he used
what is usually termed the “functional loss method”
and found that each upper extremity had a 50% loss
of function based on bilateral shoulder injuries,
justifying a 30% WPI rating for each shoulder.
Analysis
This case breaks no new ground and has minimal
precedential value because the WCAB, rather than
providing an opinion, just incorporated the opinion
of the WCJ by reference. And, since the WCJ
provided multiple reasons for why he accepted the
Almaraz/Guzman rating, it is not known which of
the reasons the WCAB agreed with.
However, the case does raise some issues worth
addressing.
The WCJ stated that neither of the two published
Court of Appeals cases (the Sixth District’s
Guzman III/Milpitas decision and City of
Sacramento v. WCAB (Cannon) (2013) 79 Cal.
Comp. Cases 1) provides a brightly shining light
on when to depart from a strict Guides rating. This
is true to some extent, although a close analysis of
those cases could lead to a different conclusion.
The WCJ quoted from Cannon, in which the
Cannon Court stated the following about the
Guzman III/Sixth District case:
We agree with the board majority that this is
an unwarranted interpretation of the Sixth
District’s decision in Milpitas Unified.
What the Sixth District said was this: “The
Guides … cannot rate syndromes that are
‘poorly understood and are manifested
only by subjective symptoms.’ {Citation.] [¶]
To accommodate those complex or
extraordinary cases, the Guides calls for the
physician’s exercise of clinical judgment to
assess the impairment most accurately.”
(Milpitas Unified, supra, 187 Cal.App.4th at
p. 823, italics added.) Thus, the Sixth District
was using the term “complex or extraordinary
cases” to describe “syndromes that are
‘poorly understood and are manifested
only by subjective symptoms,’ ” which the
AMA Guides do not, and cannot, rate.
It is undisputed that Cannon’s condition—
plantar fasciitis—is manifested only by his
subjective experience of pain. Thus, his
condition appears to fall right into the
category of cases the Sixth District was
describing in Milpitas Unified, where the
AMA Guides “calls for the physician’s
exercise of clinical judgment to assess the
impairment most accurately.” (Milpitas
Unified, supra, 187 Cal.App.4th at p. 823.)
This quote indicates that the Cannon Court was
justifying an Almaraz/Guzman rating based on
one of the enumerated criteria in Guzman III
being present, namely poorly understood pain
syndromes that are manifested only by subjective
symptoms.
The Cannon Court did not say that in order to
exercise judgment and depart from the Guides all
a physician needs is a belief that there is a more
accurate way to rate an impairment. Rather, there
20
May–August 2015
are criteria that must first be satisfied before an
Almaraz/Guzman analysis is permitted.
The criterion that the court relied on in Cannon
to permit an Almaraz/Guzman analysis—a poorly
understood pain syndrome—was not present in
Smith, as she had shoulder surgery with objective
findings.
The Guzman III Court, although not a model of
clarity, as the WCJ notes, did provide three criteria,
only one of which a physician has to satisfy in
order to depart from a strict Guides rating:
1. Poorly understood subjective pain syndromes
2. New conditions not addressed in the Guides, or
3. Impairments not anticipated or described in
the Guides, also referred to in Guzman III as
“complex or extraordinary conditions”
It is not clear in Smith that the AME satisfied any
of these criteria in his report.
Accuracy
The doctor thought that a 30% WPI rating for the
left shoulder based on estimated functional loss
was more accurate than a 25% WPI Guides rating
based on the shoulder surgery and (presumably)
accompanying loss of range of motion.
The doctor’s opinion might have been challenged
Issue No. 14
based on his not providing the how and why a
strict Guides rating of 25% WPI was less accurate
than a 30% WPI rating.
Also, presumably the same criteria that the WCAB
applies from Escobedo (Escobedo v. Marshalls (2005)
70 Cal. Comp. Cases 604) to determine whether
nonindustrial apportionment is valid (i.e., how and
why a certain apportionment percent was chosen)
would be applied in this case to how and why there
was a 50% loss of function in the upper extremity.
Although some cases have not required the how
and why analysis with Almaraz/Guzman (Bank of
America v. WCAB 2014 Cal. Wrk. Comp. LEXIS
105), others cases did require that the how and
why criteria be applied (Constanza v. The Torrance
Company 2012 Cal. Wrk. Comp. P.D. LEXIS 564,
Rodriguez v. State of California Dept. of Social
Services 2012 Cal. Wrk. Comp. P.D. LEXIS 704,
and Truitt v. County of San Diego 2013 Cal. Wrk.
Comp. P.D. LEXIS 522).
In Conen v. Blue Star Ready Mix 2015 Cal. Work.
Comp. P.D. LEXIS 97, the WCAB, in a split
decision, applied a rigorous analysis to the
physician’s apportionment and rejected the
apportionment, which is a rigorous standard that
was not applied to the doctor’s Almaraz/Guzman
analysis in Smith.
DRE VERSUS ROM METHODS
Zendel v. County of Los Angeles 2015 Cal. Wrk. Comp. P.D. LEXIS 244
Issue
❖
DRE versus ROM methods
Disposition
denied. The WCJ’s finding that the AME was
correct in rating the cervical and lumbar spine
regions using the ROM method was upheld.
Facts
The applicant injured her lumbar and cervical spine.
Based on MRIs showing multilevel disc pathology
in both spine regions and positive electrodiagnostic
findings in both regions, the AME rated both spinal
regions using the ROM method.
Analysis
Multiple Spine Regions
Defendant might have cited paragraph 7 on page
381 of the Guides, which states that if more than
one spine region is impaired, the DRE method
should be used to determine the impairment of
the other region(s).
Issue No. 14
May–August 2015
Even if both regions qualified for a rating using
the ROM method, only one region should have
been rated using the ROM method.
Inclinometer
The defendant argued that an inclinometer must
be used to measure loss of ROM with the ROM
method. The WCJ pointed out that the Guides
states that an inclinometer is only the “preferred”
method for measuring loss of ROM.
“Preferred” might not have been the best term for
the editors of the Guides to use because the entire
section on measuring loss of ROM is clear that not
only must an inclinometer be used but also that
for most measurements the physician needs two
inclinometers to determine the rating.
The Guides provides no alternative to the use of
inclinometers when using the ROM method.
It is not clear how the AME could have determined
loss of ROM without use of an inclinometer other
than estimating based on “eyeballing” the applicant’s
range of motion. That might be acceptable if the
loss of ROM was not being rated, but certainly if
the AME is providing a rating based on loss of
ROM, the measurements should be objective to the
extent possible—which, as the Guides indicates on
page 403, requires multiple measurements being
taken by inclinometers that must satisfy various
consistency tests to be valid. Also, on page 406,
the Guides suggests an accessory validity test for
the lumbar spine based on measurements done
with inclinometers.
If the AME did not use an inclinometer, it is
surprising that the case was not sent back to this
doctor or another doctor for a reevaluation using
inclinometers
Multilevel Involvement
There is a dispute over whether the phrase “multilevel
involvement,” one of the criteria that can justify a
rating using the higher-rating ROM method, is a
reference to multilevel radiculopathy or multilevel
pathology.
There was a positive electrodiagnostic finding in
both spinal regions, but it was not clear if the
21
positive findings were at only one level or at
multiple levels in each spinal region. If they were
at only one level, and if the requirement for using
the ROM method is considered to be multilevel
radiculopathy and not just multilevel pathology,
then the ratings for both regions should have been
done using the DRE method, category III for
radiculopathy.
It was also not clear if the applicant had only a
positive electrodiagnostic finding without clinical
findings, which might only be radiculitis
(irritation of the nerve root) or if the positive
electrodiagnostic finding was accompanied by
clinical evidence of what the Guides refers to on
page 382 as “significant alteration in the function
of a nerve root,” which would be a radiculopathy.
Alterations in the function of a nerve root, as
noted in category III of the DRE method, include
sensory and motor deficits, atrophy, and reflex loss.
If there is only spine pathology (arthritis,
degenerative disc disease) rather than
radiculopathy, the Guides recommends on page
383 that these common developmental findings,
which include herniated disks, not be rated.
And, according to the Fourth Edition of the
Guides, when the DRE method was created, one
reason for its creation in that edition was that the
editors did not believe that herniated disks
without radiculopathy were due to cumulative
trauma. Rather, they were thought to be due to the
natural result of aging (pp. 3/94, 3/99, 3/100).
When interviewed on this issue, both Robert
Haralson, MD, the Chapter Chair of the Spine
Chapter in the Guides Fifth, and Gunnar B.J.
Andersson, MD, PhD, the Senior Orthopedic
Editor of the Guides Fifth, said that the term
“multilevel involvement” is a reference to
multilevel radiculopathy, not multilevel
pathology.1
REFERENCE
1.
K. Kingdon, Using the Guides Fifth as Intended in California Workers
Compensation: Interviews with the Senior Medical Editor and
Principal Chapter Chairs of the AMA Guides Fifth (San Pedro CA:
Kingdon Publishing Inc., 2011), p. 28, Question 13, and p. 4,
Question 5.
22
May–August 2015
Issue No. 14
TABLE OF CASES IN THIS ISSUE
Dileva v. Northrop Grumman Systems Corp.
2015 Cal. Wrk. Comp. P.D. LEXIS 99 . . . . . . . . . . . 17
Rice v. City of Jackson
Dufresne v. Sutter Maternity & Surgery Center of
Santa Cruz
2014 Cal. Wrk. Comp. P.D. LEXIS 710 . . . . . . . . . . 10
Smith v. County of Sacramento
Hanker v. City of Stockton
Solano v. WCAB, Wal-Mart Associates, Inc.
80 Cal. Comp. Cases 394; 2015 Cal. Wrk.
Comp. LEXIS 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Los Angeles County Metropolitan Transportation
Authority (aka Los Angeles Metropolitan Transit
Authority (LAMTA)) v. WCAB (La Count)
80 Cal. Comp. Cases 470, 2015 Cal. Wrk. Comp.
LEXIS 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Varguez v. I/O Controls Corporation
Maverick v. Marriott International
2015 Cal. Wrk. Comp. P.D. LEXIS 50 . . . . . . . . . . . . 7
Zendel v. County of Los Angeles
2015 Cal. Wrk. Comp. P.D. LEXIS 244 . . . . . . . . . 20
Walter v. International Capital Group
Qazi v. The Boeing Company
SECONDARY CASES MENTIONED IN THIS ISSUE
Anderson v. Jaguar/Landrover of Ventura
Bank of America v. WCAB
2014 Cal. Wrk. Comp. P.D. LEXIS 105 . . . . . . . . . 20
Benson v. WCAB
(2009) 74 Cal. Comp. Cases 113 . . . . . . . . . . 3, 17-18
Blackledge v. Bank of America
75 Cal. Comp. Cases 613; 2010 Cal. Wrk. Comp.
LEXIS 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Borela v. State of California Department of Motor
Vehicles
Brodie v. Contra Costa County Fire Protection
District
(2007) 72 Cal. Comp. Cases 565 . . . . . . . . . . . . 15-16
California Institute of Technology/Jet Propulsion
Laboratory v. WCAB (Bonzo)
(2010) 75 Cal. Comp. Cases 735 (writ denied). . . 2
Castro v. Container Supply Co.
City of Sacramento v. WCAB (Cannon)
(2013) 79 Cal. Comp. Cases 1. . . . . . . . . . . . . . . 19-20
Coleman Burke v. WCAB (Burton)
(2014) 79 Cal. Comp. Cases 713 . . . . . . . . . . . . . . . 12
Conen v. Blue Star Ready Mix
2015 Cal. Wrk. Comp. P.D. LEXIS 97 . . . . . . . . . 5, 20
Constanza v. The Torrance Company
Cruz v. Petaluma Poultry Processors
Issue No. 14
May–August 2015
SECONDARY CASES MENTIONED (continued)
East Bay Municipal Utility District v. WCAB (Kite)
(2013) 78 Cal. Comp. Cases 213
(writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ecoffey v. WCAB
(2014) 79 Cal. Comp. Cases 469 . . . . . . . . . . . . . . . 11
Eliborio Mayorga vs. Dexter Axle Chassis Group
ADJ 364166; 3925942 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Escobedo v. Marshalls
(2005) 70 Cal. Comp. Cases 604 . . . . 7, 8, 14-16, 20
Giroux Glass Inc. v. WCAB (Hatley)
(2012) 77 Cal. Comp. Cases 730 . . . . . . . . . . . . . . . . 3
Green v. WCAB
(2005) 70 13 Cal. Comp. Cases 294 . . . . . . . . . . 6, 18
Guzman III (Milpitas v. WCAB (Guzman) (2010)
75 Cal. Comp. Cases 837. . . . . . . . . . . . . . . . . . . . 19-20
Hunter v. Dept. of Mental Health
(2013) 41 CWCR 173 . . . . . . . . . . . . . . . . . . . . . . . 14-16
Kleeman v.WCAB
(2005) 70 Cal. Comp. Cases 133 . . . . . . . . . . . . . . . 15
Payless Shoesource, Inc. v. WCAB (Twine)
(2010) 75 Cal. Comp. Cases 1225 (writ denied) . . .2
Power v. WCAB
(1986) 179 Cal.App.3d 775, 782 [51 Cal.
Comp. Cases 114} . . . . . . . . . . . . . . . . . . . . . . . . 7, 17-18
Radiator United States v. WCAB
2015 Cal. App. Unpub. LEXIS 1089, 80 Cal.
Comp. Cases 79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reyes v. Hart Plastering
(2005) 70 Cal. Comp. Cases 223 (Significant
Panel Decision). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Rodriguez v. State of California Dept. of
Social Services
Siqueiros v. WCAB
(1995) 60 Cal. Comp. Cases 150, 151
(writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18
South Coast Framing, Inc. v. WCAB
80 Cal. Comp. Cases 489,
2015 Cal. LEXIS 3896 . . . . . . . . . . . . . . . . . . . . . . . 16
Los Angeles Unified School Dist. v. WCAB (Steele)
(2000) 65 Cal. Comp. Cases 300
(writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18
State of California Department of
Transportation v. WCAB (Edwards)
77 Cal. Comp. Cases 1023; 2012 Cal. Wrk.
Comp. LEXIS 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Maghuyop v. Hull’s Walnut Creek Chapel
Sweetman v. Bank of America
Malhotra v. State of California Dept. of
Developmental Services
Truitt v. County of San Diego
McLaurin v. Southern California Edison
2011 Cal. Wrk. Comp. P.D. LEXIS 8 . . . . . . . . . . . . . 2
NBC Universal Media LLC v. WCAB (Moussa aka
Andramos)
2014 Cal. Work. Comp. P.D. LEXIS 4 . . . . . . . . . . . 12
Vivirito vs. City of Glendale
(2015) ADJ 7009099 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Zemke v. WCAB (W.S. Shamban and Company)
(1968) 33 Cal. Comp. Cases 358 . . . . . . . . . . . . . . . 11
23
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Telephone: 310 968-1816
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Website: www.kingdonrating.net
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