The principles of the Almarez/Guzman decisions continue to evolve more than three years after the final decision was reached in August 2010. It appears pretty well settled that either party has the ability to rebut the presumption of the 2005 Permanent Disability Rating Schedule (PDRS); that the burden of proof rests on the party contesting the PDRS; and that in rebutting the presumption, a physician must not go outside the “four corners” of the AMA guidelines. The main question affecting most decisions today is how and when a physician can utilize by analogy any other chapter, table or method within the AMA guides to determine a disability that most accurately reflects an injured employee’s impairment.
The use of Almarez/Guzman is generally used by injured workers as a sword to escape the strict objective measurements of the AMA guidelines in order to identify subjective complaints and utilize methods which generally increase the Whole Person Impairment for the injured worker. In doing so the burden of proof rests on the injured worker and the physician must meet the standards set forth in Escobedo v. Marshalls (70 CCC 604) in presenting substantial medical evidence to rebut the presumption. Defendants on the other hand generally rely on language within the Almarez/Guzman decisions in an attempt to limit the ability of the physician to reach outside the strict application of objective measurements in making their assessment. Language within the decision left open to interpretation states, “The Guides itself recognized that it cannot anticipate and describe every impairment that may be experienced by injured employee. To accommodate those complex and 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.” Milipitas Unified School District v. WCAB (187 Cal.App.4th 808, 830).
This language allows the physician to use comparable conditions in complex and extraordinary cases. So what entails a complex and extraordinary case? A recent appellate court decision City of Sacramento v. WCAB (Cannon) 2013 Cal. App. Unpub. LEXIS 9348 has provided some insight in how the courts may handle cases dealing with conditions that do not have a strict application within the AMA Guidelines. Although not a published opinion at this juncture, the third appellate court has determined in one instance that injuries, even those without objective findings, but with some subjective component may still be analogized within the AMA Guidelines. Further, complex and extraordinary contemplates those diagnoses that have no strict application within the AMA Guidelines.
Mr. Cannon was a police officer for the City of Sacramento who sustained an injury to his left foot and heel during a physical fitness test resulting in a diagnosis of plantar fasciitis. A small bone spur was identified although resulted in no objectively identifiable measurement of disability. Mr. Cannon did complain of pain and a noticeable limp when not wearing orthotics or when running for extended periods of time.
Mr. Cannon was evaluated by Agreed Medical Examiner William Ramsey, M.D. who confirmed Mr. Cannon to not have any objective measurement of disability, but allowed for disability based on analogy to a gait derangement table that is present within the AMA Guidelines. Dr. Ramsey had previously concluded that Mr. Cannon had the absence of any gait derangement, but none the less analogized to that table. His opinion was surmised on the basis that the left heel caused “weightbearing problems and would likely be aggravated appreciable by running activity on other than a short term basis…. Therefore I would recommend characterizing him in Section A, a limp, despite the absence of any arthritic changes about adjacent joints….”
The trial court found in favor of the City of Sacramento relying on the strict application of the guides in finding no objective evidence of disability and a 0% PD finding. The case was reviewed on reconsideration and the WCAB reversed the decision 2 to 1 sending the case back to the trial court for a decision based on the AME opinions with regard to Almarez/Guzman II. The City of Sacramento petitioned for review on two grounds: (1) that where there are no objective findings of disability, rating by analogy is inappropriate; and (2) that a condition such as plantar fasciitis is not complex or extraordinary and therefore cannot be rated by analogy.
The appellate court in the third district did not agree with the City on either point. The court held that since the language of Labor Code section 4660(b)(1) did not compel the strict application of the AMA Guidelines in every case the fact that there were no or limited objective findings would not limit a physician from using his clinical expertise and judgment to analogize to another part of the AMA Guides even in the absence of objective measurements.
Further with regard to complex and extraordinary cases, the court held the Sixth District in Almarez/Guzman decisions utilized the terms complex and extraordinary to “describe syndromes that are ‘poorly understood and are manifested only by subjective symptoms’ which the AMA Guides do not and cannot rate.” Although plantar fasciitis may be a syndrome that is easily recognizable the fact that symptoms felt by an individual are not described within the AMA guides specifically, the physician may be able to utilize other chapters, table or methods within the Guides to analogize to that condition.
The decision is not published although provides an ideology that may be used by the courts when defenses to limit the extension of subjective complaints by analogy within the AMA Guidelines are attempted. Plantar fasciitis is a commonly recognized complaint that carries knowledge of subjective pain in an individual that is not described by objective measurements within the AMA Guidelines. The court did not stretch the limits in making this decision. It is similar to decisions made with regard other commonly recognized subjective complaints such as headache syndromes.
Can this same thought process, however, be used in defense? If the court is concluding the term complex and extraordinary as used in Almarez/Guzman was to describe those “syndromes that are poorly understood and are manifested only by subjective symptoms” is it possible to use that same language to limit the application by analogy where a physician is simply expounding his/her conclusion to increase the WPI for a condition that has a specific diagnosis and objective measurements within the AMA Guidelines?
For example, an employee injures his shoulder with a resulting arthroscopy which results in a limited range of motion resulting in a 1% WPI. The doctor analogizes to chapter 6.6 of the guides to a hernia because it includes language precluding heavy lifting and the doctor increases the WPI to 10%. Should this be allowed? The diagnosis is specific and the objective measurements are ratable within the guides. This is not a condition that would appear complex and extraordinary within the finding of the Cannon decision. The defense position remains that the physician has not provided substantial medical evidence in support of the analogy, but also the concept of complex and extraordinary should remain just that: those conditions which are poorly understood, manifested by subjective complaints and only those which are not recognized within the objective measurements provided in the AMA Guidelines.