Court of Appeal Affirms Guzman

Milipitas Unified School District v. Workers' Comp. Appeals Bd. (2010): The Sixth District Court of Appeal affirmed the Guzman side of the Workers' Compensation Appeals Board's en banc decision of September 3, 2009 in the Almaraz/Guzman (Almaraz II) case.

The case allows for rebuttal of the whole person impairment (WPI) portion of a permanent disability rating. The Court of Appeal affirmed the limitation on such rebuttal by continuing the “four corners” restriction. It also affirmed the WCAB’s requirement that any report relied upon by the trial judge must constitute “substantial medical evidence” not only on the correct assessment of the WPI, but also on the reason for rebutting the “standard” assessment methodology.

The Court did broaden the scope of evidence that a physician may cite to support the rebuttal and open the door for consideration of that evidence by the trial judge:

“In order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating. That explanation necessarily takes into account the physician’s skill, knowledge, and experience, as well as other considerations unique to the injury at issue. In our view, a physician’s explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources. The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence. If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician’s opinion will be properly rejected. Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the trier of fact may not be able to determine whether a party has successfully rebutted the scheduleed rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment.”

The Court rejected attempts by Milpitas and its amicus curiae to have Labor Code section 4660, subdivision (b)(1)’s requirement that the Guides be “incorporated” into the rating schedule as a mandate that they be strictly followed. The Court resorted to Webster’s Dictionary to explain that the word “incorporate” requires a physician to add the Guides to his or her bases for determining a WPI. As the court explained, by using the word “incorporate” the “Legislature recognized that not every injury can be accurately described by the classifications designated for the body part involved.” The Court also noted that a narrower interpretation would be inconsistent with the language of the Guides itself.

The Court also rejected arguments that such an interpretation would open the flood gates and result in to misapplication of the Guides. In doing so the Court put much reliance in the ability of trial judges to determine whether a medical opinion constitutes “substantial medical evidence” on the rebuttal and rating issues. The Court reminded the parties that the Legislature left Labor Code section 4660, subdivision (c), which makes the Scheduled only “primae facie” evidence of permanent disability, unchanged when it adopted the Guides approach. As the Court properly noted the Legislature is presumed to know existing law when enacting new statutes.

Commentary:

Both sides have clamed victory as a result of the Court’s Opinion. In truth, both sides lost.

Milipitas on behalf of defendant’s was the moving party. It sought to have the Guides deemed irrebuttable. Instead its efforts resulted in the creation of more ambiguity in ratings. Doctors are now free to rely on anything and everything. This constitutes a roll back toward the original Almaraz/Guzman en banc decision (Almaraz I). There was no victory here for the moving party.

Guzman did not file her own Petition for Writ of Review, but should have. The Sixth Appellate District’s Opinion suggests it might have opened the door up much wider for rebuttal of the WPI had Guzman just asked. The Applicant’s bar has missed a golden opportunity.

Defendants are claiming the language of the decision limits rebuttal of WPIs to complex or extraordinary cases. However, it should be noted there was nothing complex or extraordinary about Guzman’s neck injury in the first place.

Regardless of how one spins the Opinion its real result will be more litigation and more work for medical legal evaluators.

At this point in time it is unclear if either side with Petition for Review to the Supreme Court.

Meanwhile the Fifth Appellate District Court of Appeal has still not acted on the Almaraz half of this case.

Stay tuned. The end is not near.

Filed August 19, 2010.

Heggeness,Sweet, Simington & Patrico, A.P.C

Court of Appeal Affirms Guzman