By: Vic R. Redula, esq.
Mario Almaraz, a truck driver, sustained admitted injury to his back on November 5, 2004 when he puled a large tarp on top of the trailer of his truck. He felt pain from his low back down to his right leg. On December 29, 2004 he had surgery (a laminectomy and discectomy) at his low back. Following his injury, his employer did not offer him modified work but found employment as an instructor in a truck driving school.
He was evaluated by an Agreed Medical Evaluator who concluded that he has a 12% whole person impairment (WPI) under the AMA Guides and that he is permanently limited to light duty work and from prolonged sitting activities.
Using the AMA Guides, his permanent disability was rated to 17% before apportionment and 14% after apportionment which is equal to $12,050.00 at maximum rate of $200.00 per week. Under the 1997 Schedule, his permanent disability was rated to 58% before apportionment and 46% after apportionment which is equal to $51,550.00 at maximum rate of $200.00 per week.
In the companion case, Joyce Guzman sustained admitted injury to her bilateral upper extremities as a result of cumulative trauma at work. She was evaluated by an Agreed Medical Examiner who concluded that she sustained 3% whole person impairment per upper extremity using the AMA Guides. However, the AME also stated that her bilateral upper extremity injury precludes her from very forceful, prolonged repetitive and forceful repetitive work activities. Based on her activities of daily living (ADL)losses, each upper extremity would have a 15% WPI . . . . and proceded to opine that this is not a method that is sanctioned by the AMA Guides.
The 3% WPI rated to 12% which is equal to $8,415.00 at the maximum rate of $230.00 per week. However, if she were rated based on ADL, her permanent disability rating would be 39% after adjustment for age and occupation. 39% is equal to $42,680.00 at the maximum rate of $230.00 per week.
As you can see from the above facts, the AMA Guides result in very significant reduction of the already meager workers' compensation benefits before the AMA Guides was adopted through SB899 in april, 2004.
The Court held that,
1) The AMA Guides is rebuttable and a party may present evidence to overcome it. Labor Code section 4660(a) only requires consideration of the AMA Guides. It does not make the AMA Guides determinative in assessing an injured employee's impairment;
2) The AMA Guides does not measure work impairment;
3) It is appropriate in some cases for a physician to consider factors outside the Guides, including the injured employee's ability to perform work and his or her need for work restrictions or accommodations.
4) A disability determination also includes information about the individual's skills, education, job history, adaptability, age, and environment requirements, and modifications. Assessing these factors can provide a more realistic picture of the effects of the impairment on the ability to perform complex work;
5) A physician may assess how the industrial injury will affect the employee's ability to return tohis or her job. Further, with respect to the broader job market, other evidence may be appropriate - specifically including the expert opinion of "vocational specialists."
6) The AMA Guides portion of the 2005 Schedule is rebutted if it is established that the AMA Guides impairment rating does not "accurately reflect the employee's true disability;
7) On the other hand, a defendant also can show that an AMA Guides rating should not be followed where it is inequitably high; and
8) In reaching an impairment opinion that is not based on a strict application of the AMA Guides, a physician may consider a wide variety of medical and non-medical information.