A recent panel decision of Eileen Chung v. Kaiser Foundation Hospital addressed the WCAB’s ability to reopen the record for the purposes of supplementing the record by way of an Almarez/Guzman analysis. The panel decision limits the court’s ability to reopen the record where substantial evidence of permanent disability exists and where the burden of proof to rebut that rating has not been satisfied.
In Chung, applicant sustained an industrial injury to her lumbar spine. She was seen by an Agreed Medical Examiner who determined her permanent disability pursuant to diagnostic related estimate (DRE) methodology and also by way of range of motion. The AME went on to state, “in relation to the Guzman decision, it would be more accurate to describe Ms. Chung’s lumbar symptomatology via the range of motion rather than the DRE method.”
The AMA Guides use the DRE as its principal methodology for providing impairment for distinct injuries to the spine, but affords the use of range of motion under specified situations. The AME did not provide any additional clarification as to why he would use the range of motion as opposed to the DRE.
The trial judge ordered the matter returned to the AME to further develop the record indicating that he “was not sure that the AME adequately described why one method [of rating permanent disability] is preferable to the other pursuant to … Guzman.” The Judge supported that further in his response to Petition for Removal indicating that where “a medical conclusion that one method of rating impairment is inferior to another in describing disability cannot comprise substantial evidence that the inferior method must be used.” He felt it was “incumbent” on the trier of fact to find out why the AME felt the DRE principles had been rebutted.
Upon review, the WCAB Panel granted defendant’s Petition for Removal finding that the proper analysis for the court to consider is whether the submitted report(s) constitute substantial evidence to support a rating under the AMA Guides and the PRDS and, if so, whether applicant has sustained her burden of proof in rebutting that rating.
It was noted that neither applicant nor defendant attempted to obtain additional evidence from the AME either prior to the MSC, after the Court of Appeal filed its decision in Guzman, or attempted to brief the rating issues as allowed by the court. (The Court of Appeal decision in Guzman was issued between the MSC date and the date of trial.)
Keeping in mind that this is only a panel opinion, the decision highlights a limitation on the WCAB in seeking development of the record. Where a PDRS rating under the AMA Guides has been provided and where substantial evidence to rebut that rating is lacking, the court should not be allowed further development of the record.
Although rebutting the PDRS is available to either applicant or defendant, it almost always falls to applicant or his/her counsel. Therefore evaluation of reports and the timing in moving forward to settlement/trial can be critical. A decision to challenge a medical legal opinion should be considered in light of allowing the opposing side the ability to further shore up any existing holes.