AMA Guides Not Valid

California workers' comp has recently experienced an earthquake-type event, the Almaraz decision.

Very few observers saw this coming. What is it, and what's the fuss?

Here's a synopsis that may be helpful for injured workers and individuals interested in workers' comp who may not have been following developments in the law closely.

Almaraz, the California Workers Compensation Appeals Board en banc decision unveiled in February 2009, may be the most significant workers' comp decision in several years (a link to the consolidated decision in Almaraz v. Environmental Recovery Services and SCIF and Joyce Guzman vs. Milpitas Unified School District and Keenan & Associates) is available at the bottom of this post.

It's a 56 page decision signed by all WCAB commissioners. In past cases the California Court of Appeal and Supreme Court have been very deferential to the expertise of the WCAB. There may be appeals filed, although the decisions in both Almaraz and Guzman return those cases to the trial level for more development of the evidentiary record.

Almaraz (it's actually Almaraz and Guzman, but I'll call it Almaraz for simplicity's sake) deals with the issue of whether and how the American Medical Association Guides 5th edition, referenced in Labor Code 4660 and in the 2005 Permanent Disability Rating Schedule, can be rebutted.

In Almaraz the WCAB makes the following important findings:
-the AMA Guides portion of the 2005 schedule is rebuttable and not conclusive
-Labor Code 4660 requires consideration of the AMA Guides but does not make the AMA Guides determinative in assessing an injured employee's impairment
-the AMA Guides does not measure work impairment and indeed excludes work from the activities of daily living considered
-the AMA Guides recognize that it is merely a first step for measuring work impairment; factors outside the guides may be considered, including the impact of the injury on the employee's ability to perform work activities
-the AMA Guides allow an evaluating physician, through the exercise of judgment, to modify an impairment rating
-the law of many other states recognize that other factors can be considered in addition to the guides

Having found that an impairment rating under the AMA Guides may be rebutted, the unanimous WCAB turned to the question of what standards are to be used in determining whether there has been rebuttal.

The conclusion?

"We conclude that an impairment rating strictly based on the AMA Guides is rebutted by showing that such an impairment rating would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability."

In pushing for use of the AMA Guides in California in 2004, the employer and insurance carrier community hoped that use of the AMA guides would result in more standardization of ratings and less subjectivity in the rating system.

The goal of most of the 2004 reformers was to base permanent disability ratings on a system founded on "objective" measurable impairment. This was seen as necessary to tame a system they claimed was out of control and was an element of a comprehensive reform to lower comp costs.

Pre-2005 injuries that were permanent and stationary before 1.1.05 or that resulted in the "existence of permanent disability" before 1.1.05 are rated under the pre-AMA system. The pre-AMA system based many ratings on work restriction categories, some of which were called "plateau ratings". For example, a limitation of no very heavy lifting (which had a specific definition under the "old" rating schedule) carried a 10% rating (which was then either increased or decreased by occupational and age factors). Under the former system ratings were sometimes affected by the doctor's assessment of the degree and frequency of subjective complaints.

The 2004 employer/carrier reform group wanted no room in the system for work preclusions or subjective assessment.

Reference to the AMA guides (5th edition) was inserted in SB 899.

It's a big green book, hundreds of pages long.

Of course, the reformers could have chosen other versions of the AMA guides. A number of states use versions other than the 5th edition.
Since 2004, the AMA has unveiled the 6th edition of the Guides; so far the 6th edition seems to be getting a tepid response in most states.

The 5th edition of the Guides assigns "Whole Person Impairment" figures to conditions which affect organs and body parts from head to toe.

But the Guides are not evidence based. "Whole Person Impairment" percentages under the Guides are not based on studies of work disability nor are they based on other scientific studies. The WPI figures of the Guides are ultimately every bit as arbitrary as the "plateau ratings" that were used for many conditions before SB 899.

That's why it's amusing but maddening to see some self-serving lawyers and doctors fulminating about "correct impairment ratings" under the Guides. Some of these folks now run cottage industries-as seminar leaders and as consultants- that seek to preserve "correct impairment ratings".

They are big proponents of a kind of "cookie cutter" justice.

With Almaraz, their franchise just took a huge hit.

But there's another big problem with the Guides. The Guides make it clear that they are NOT measuring work impairment, but rather impairment of other activities of daily living.

A rigid application of the Guides in some circumstances has resulted in workers being assessed with 0% "Whole Person Impairment" but with work restrictions which caused them to lose their job.

The cottage industry consultants (some of who helped author the Guides) are unable to give a satisfactory intellectual answer to that conundrum. How can a person be assigned work restrictions which preclude return to work (or which trigger the interactive process for reasonable accomodation under FEHA, the California Fair Employment
and Housing Act), and yet be assigned no AMA "Whole Person Impairment"?

This never passed the "smell test".

Almaraz basically means that a rating will have to pass the smell test.

Under Almaraz, the rating must not be "inequitable, disproportionate and not a fair and accurate measure of the employee's permanent disability".

Fairness, equity, proportionality, accuracy.

The pendulum need not swing back to excesses of the prior system. But it appears the pendulum is headed back to a system which allows greater focus on how an injury affects the individual worker.

Stay tuned. In future posts I'll be looking at what sorts of evidence may be relevant under Almaraz.

Here is the link to Almaraz:
http://www.dir.ca.gov/wcab/EnBancdecisi ... uzmanJ.pdf

Julius Young
www.boxerlaw.com