2009-EB-1 (2009). Boughner v. COMP USA, Inc.
Court | California |
California Workers Compensation Decisions
2009.
2009-EB-1 (2009).
Boughner v. COMP USA, Inc
WORKERS' COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA MARIO ALMARAZ, Applicant, vs.ENVIRONMENTAL
RECOVERY SERVICES (a.k.a. ENVIROSERVE); and STATE COMPENSATION INSURANCE FUND,
Defendant(s).Case No.
ADJ1078163 (BAK 0145426) OPINION AND DECISION
AFTER RECONSIDERATION(EN BANC) JOYCE GUZMAN, Applicant, vs.MILPITAS UNIFIED
SCHOOL DISTRICT, Permissibly Self-Insured; and KEENAN and ASSOCIATES, Adjusting
Agent, Defendant(s).Case No.
ADJ3341185 (SJO 0254688)OPINION AND DECISION
AFTER RECONSIDERATION(EN BANC) The Appeals Board granted reconsideration in each of these
matters. Because these cases present common issues of law, and for judicial
efficiency, they have been consolidated for the limited purpose of issuing a
joint Opinion and Decision After Reconsideration. (Cal. Code Regs., tit. 8,
§ 10589.)
Because of the important legal issue as to whether and how the
AMA Guides [1]portion of the 2005 Schedule for Rating Permanent Disabilities
(2005 Schedule or Schedule)[2] may be rebutted, and to secure uniformity of
decision in the future, the Chairman of the Appeals Board, upon a majority vote
of its members, assigned these cases to the Appeals Board as a whole for an en
banc decision. (Lab. Code, § 115.)[3]
For the reasons below, we hold in summary that: (1) the AMA
Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion
of the 2005 Schedule is rebutted by showing that an impairment rating based on
the AMA Guides 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; and (3) when an impairment rating based on the
AMA Guides has been rebutted, the WCAB may make an impairment determination
that considers medical opinions that are not based or are only partially based
on the AMA Guides.
In the cases before us, however, we explicitly emphasize that we
are not determining whether the standards for rebutting the AMA Guides portion
of the 2005 Schedule have been or may be met. Instead, in each case, we are
remanding to the assigned workers' compensation administrative law judge (WCJ)
to decide these questions in the first instance.
Further, we expressly proclaim that our holding
does not open the door to impairment
ratings directly or indirectly based upon any Schedule in effect prior to 2005,
regardless of how "fair" such a rating might seem to a physician, litigant, or
trier-of-fact.
I. BACKGROUND
A. The Almaraz
Case
Applicant, Mario Almaraz, sustained an admitted industrial injury
to his back on November 5, 2004, while employed as a truck driver by
Environmental Recovery Services (a.k.a. Enviroserve), insured by defendant,
State Compensation Insurance Fund.
Applicant did not testify at trial, but the medical evidence
indicates he injured himself when, while manually pulling a large tarp on to
the top of the trailer of his truck, he felt a pop in his low back. He
experienced low back pain extending into his right leg.
On December 29, 2004, applicant had a laminectomy and discectomy
at L4-5.
After a period of temporary disability, applicant began working
as an instructor at a truck driving school. The parties stipulated that,
following his injury, applicant's employer did not offer him modified work as a
truck driver.
Applicant was evaluated by Bruce E. Fishman, M.D., as an agreed
medical evaluator (AME). In his initial report dated November 22, 2006, Dr.
Fishman declared applicant to be permanent and stationary. He concluded that
applicant has 12% whole person impairment (WPI) under the AMA Guides, based on
a DRE lumbar category III. He also noted, however, that applicant is
permanently limited to light duty work and permanently precluded from prolonged
sitting activities. Dr. Fishman found that 20% of applicant's current
lumbosacral disability was non-industrial - i.e., it was caused by the natural
progression of prior non-occupational injuries, by his diffuse underlying
degenerative lumbar disc disease, and by pre-existing spondylosis. Dr. Fishman
stated that he had no job analysis for applicant, but reported that applicant
had described his job as involving: (1) lifting up to 100 pounds; (2) pushing
and pulling drums weighing up to 1500 pounds; (3) bending, stooping, twisting,
climbing, squatting, kneeling, and reaching overhead; (4) using a pallet jack,
a forklift, and dollies; and (5) working 8 to 12 hour shifts, with 80% of the
time spent sitting and the remaining 20% spent standing or walking. In the
absence of a formal job analysis, Dr. Fishman indicated he could not determine
whether applicant could return to his job duty as a truck driver. Nevertheless,
Dr. Fishman stated that applicant "clearly would be unable" to move 1500 pound
drums.
Dr. Fishman issued a supplemental AME report dated October 16,
2007. In that report, he reiterated that applicant is limited to light duty
work and is precluded from prolonged sitting. He stated that these restrictions
are both actual and prophylactic.
Applicant's claim went to trial, primarily on the issues of
permanent disability and apportionment. Applicant argued that the WCAB has the
discretion to award permanent disability based on his work restrictions,
instead of by multiplying his AMA Guides impairment by the appropriate
diminished future earning capacity (DFEC) adjustment factor per the 2005
Schedule. The parties stipulated that, before apportionment, applicant's injury
would rate 17% under the 2005 Schedule and 58% under the 1997 Schedule.
On April 23, 2008, WCJ found that applicant's November 4, 2004
back injury caused 14% permanent disability, after apportionment. In making
this permanent disability determination, the WCJ utilized the rating
methodology established by the 2005 Schedule, including its provision that the
extent of an injured employee's permanent impairment is determined by use of
the AMA Guides. The WCJ concluded he was not free to make a permanent
disability finding based on the work preclusions set forth by Dr. Fishman. The
WCJ said that, in enacting Labor Code section 4660,[4]the Legislature "mandated
the use of the AMA Guide[s]." Specifically, he cited to section 4660(b)(1),
which provides: "For purposes of this section, the 'nature of the physical
injury or disfigurement' shall incorporate the descriptions and measurements of
physical impairments and the corresponding percentages of impairments published
in the [AMA Guides]." The WCJ further stated, "it is within the purview of the
Legislature to establish the system for rating permanent disability." Because
"the Legislature has established what that system is," the WCAB "is not at
liberty to deviate from th[ose] criteria." Accordingly, pursuant to the
parties' stipulation to 17% permanent disability under the 2005 Schedule,
before apportionment, the WCJ found that applicant's permanent disability is
14% - after apportionment of 20% of his disability to non-industrial causation.
Applicant filed a timely petition for reconsideration, contending
in substance that: (1) section 4660 merely requires that "account shall be
taken" of the AMA Guides; therefore, the Guides is not conclusive and
unrebuttable; (2) the AMA Guides need not be blindly followed where the Guides
does not completely and fairly describe and measure the injured employee's
impairment; and (3) where the AMA Guides does not fairly and accurately reflect
the injured employee's impairment, other measures of disability should be used.
No answer to the petition was received.
On July 7, 2008, we granted reconsideration.
B. The Guzman
Case
Applicant, Joyce Guzman, sustained an admitted industrial injury
to her bilateral upper extremities during a cumulative period ending on April
11, 2005, while employed as a secretary by defendant, the Milpitas Unified
School District (adjusted by Keenan and Associates).
Applicant was evaluated by Steven D. Feinberg, M.D., as an AME.
In his initial report, Dr. Feinberg diagnosed bilateral carpal tunnel syndrome,
which was not yet permanent and stationary.
In his December 2, 2005 report, Dr. Feinberg declared applicant
to be permanent and stationary. He opined that applicant's bilateral upper
extremity injury caused "a 25% loss of her . preinjury capacity for pushing,
pulling, grasping, gripping, keyboarding [and] fine manipulation." He further
stated that applicant "could not go back to [her] former occupation," because
it would "caus[e] a gradual worsening of her condition."
On July 13, 2007, Dr. Feinberg issued a supplemental AME report
that analyzed applicant's permanent disability utilizing the AMA Guides. He
concluded that applicant's injury caused 3% whole person impairment for each
upper extremity, based upon applicant's symptoms and her reported functional
difficulties secondary to her symptoms.
In a March 21, 2008 report, Dr. Feinberg reiterated that
applicant's bilateral upper extremity injury caused WPI under the AMA Guides of
3% for each side and also that her injury caused a 25% loss of her pre-injury
capacity for pushing, pulling, grasping, gripping, keyboarding and fine
manipulation.
In his final report of April 30, 2008, however, Dr. Feinberg
stated that applicant's bilateral upper extremity injury precludes her from
"very forceful, prolonged repetitive and forceful repetitive work activities."
He further stated:
"You are aware by now that there is often a discrepancy...
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