2009-EB-8 (2009). Mario Almaraz v. Environmental Recovery Services (aka Enviroserve); State Compensation Insurance Fund.

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-8 (2009). Mario Almaraz v. Environmental Recovery Services (aka Enviroserve); State Compensation Insurance Fund 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 vs. 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) In this joint en banc decision,[1] we clarify and modify our en banc decision of February 3, 2009.[2] In our February 3, 2009 decision, we held that: (1) the AMA Guides [3] portion of the 2005 Schedule for Rating Permanent Disabilities (2005 Schedule or Schedule) [4] 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 Workers' Compensation Appeals Board (WCAB) may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides. In this decision, we hold that: (1) the language of Labor Code section 4660(c),[5] which provides that "the schedule . shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's whole person impairment (WPI) under the AMA Guides;[6] and (4) when determining an injured employee's WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment. In light of these holdings, we now specifically reject the "inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability" standard set forth in our February 3, 2009 opinion. We emphasize that our decision does not permit a physician to utilize any chapter, table, or method in the AMA Guides simply to achieve a desired result, e.g., a WPI that would result in a permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005. A physician's opinion regarding an injured employee's WPI under the Guides must constitute substantial evidence; therefore, the opinion must set forth the facts and reasoning which justify it. Moreover, a physician's WPI opinion that is not based on the AMA Guides does not constitute substantial evidence. I. BACKGROUND In the Almaraz case, applicant sustained a November 5, 2004 back injury, while employed as a truck driver. He had back surgery and never returned to work. The agreed medical evaluator (AME), Bruce E. Fishman, M.D., concluded that applicant has 12% WPI under the AMA Guides. He also noted, however, that applicant is permanently limited to light duty work and permanently precluded from prolonged sitting. Dr. Fishman never reviewed a formal job analysis but, based on applicant's own description of his job duties, Dr. Fishman declared that applicant "clearly would be unable" to perform at least one aspect of his job. On April 23, 2008, the workers' compensation administrative law judge (WCJ) found that applicant's back injury caused 14% permanent disability under the 2005 Schedule, taking into consideration his 12% WPI under the AMA Guides. 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 and that a WPI based on 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 impairment should be used. In the Guzman case, applicant sustained a cumulative injury to both upper extremities (bilateral carpal tunnel syndrome) through April 11, 2005, while employed as a secretary. The AME, Steven D. Feinberg, M.D., found 3% WPI for each extremity based on the AMA Guides. However, Dr. Feinberg also stated:

"You are aware by now that there is often a discrepancy between the disability and the impairment. The type of problem [applicant] has is legitimate but does not rate very much (if anything) under the AMA Guides. Based on her ADL [(i.e., activities of daily living)] losses, each upper extremity would have a 15% WPI . . This is not a method that is sanctioned by the AMA Guides."

On October 7, 2008, the WCJ found 12% permanent disability under the 2005 Schedule, based on 3% WPI for each upper extremity. The WCJ concluded that Dr. Feinberg's 15% WPI for each upper extremity did not successfully challenge the WPI under the AMA Guides. Applicant filed a timely petition for reconsideration, essentially arguing that Dr. Feinberg's 15% WPI should have been followed because: (1) the AMA Guides expressly estimates impairments "excluding work" (AMA Guides' own emphasis); (2) the AMA Guides consistently calls for an evaluating physician to use his or her education, training, and clinical judgment in determining impairment; and (3) the AMA Guides always defers to the evaluator's clinical judgment. We granted reconsideration in both the Almaraz and Guzman cases and consolidated them for our February 3, 2009 en banc decision. There, we engaged in a lengthy legal analysis to reach a conclusion that the 2005 Schedule - and the AMA Guides portion of the Schedule - are rebuttable. Our February 3, 2009 opinion then remanded both matters to their respective assigned WCJs for further proceedings. On February 27, 2009, defendant, State Compensation Insurance Fund (SCIF) filed a timely petition for reconsideration in Almaraz. In its petition, SCIF essentially contended that our conclusion that an AMA Guides impairment rating is rebuttable: (1) directly contravenes the language of sections 4660(b)(1) and 4660(d) that permanent disability determinations "shall incorporate" the AMA Guides and that the Schedule "shall promote consistency, uniformity, and objectivity"; (2) directly contravenes the Legislature's express intention, set forth in section 49 of SB 899, to reduce workers' compensation costs; (3) improperly relied on California appellate cases on rebutting the Schedule that pre-dated the implementation of SB 899 and, therefore, that did not address the AMA Guides and their mandatory application; (4) improperly relied on statements contained in the AMA Guides that are not relevant because the Legislature did not adopt the full text of the AMA Guides, only its impairment ratings; and (5) improperly relied on out-of-state appellate cases regarding departures from the AMA Guides because those states do not mandate use of the Guides. Applicant filed an answer, essentially contending that: (1) the "prima facie evidence" language of section 4660(c) is clear and unambiguous and, therefore, neither further interpretation nor examination of legislative history is required; (2) section 4660(a) requires only that "account shall be taken" of the AMA Guides; therefore, when the AMA Guides is silent on a medical condition or falls short in fairly describing impairment, then other evidence is necessary; (3) although section 4660(d) provides that "[t]he schedule shall promote consistency, uniformity, and objectivity," these factors are not more important than fairness to the injured worker; and (4) any contrary conclusion would be inconsistent with the provisions of Article XIV, section 4, of the California Constitution, mandating "adequate" workers' compensation benefits, and section 3202, mandating liberal construction of workers' compensation laws. On April 6, 2009, we granted SCIF's petition for reconsideration in Almaraz.[7] Concurrently, we granted reconsideration on our own motion in Guzman. (Lab. Code, § 5911; see also §§ 5900(b), 5315.) We gave the parties in Guzman until May 1, 2009 to file and serve briefs on the merits. In both Almaraz and Guzman, we invited any interested person or entity to file and serve an amicus curiae brief by May 1. Finally, we gave each party in the Almaraz and Guzman cases until May 21 to file a single consolidated brief in reply to the amicus briefs. On May 1, 2009, the applicant in Guzman filed his brief on the merits, essentially contending: (1) because section 4660(c) provides that the Schedule is "prima facie evidence" of an injured employee's percentage of permanent disability, the 2005 Schedule is rebuttable and not conclusive; (2) because the Administrative Director (AD) "adopt[ed] and incorporate[ed]" the AMA Guides...