Court Approves Impairment Rating Based on Analogy

Publish Date:Jan 28, 2014
Summary:
In City of Sacramento v. Workers’ Compensation Appeals Board, which was filed on December 26, 2013 and certified for publication on January 15, 2014, the California Court of Appeal (Third Appellate District) held that determining the impairment rating for a claimant’s condition by analogy is permissible when the claimant’s condition is manifested only by his subjective expression of pain.

In City of Sacramento v. Workers’ Compensation Appeals Board, which was filed on December 26, 2013 and certified for publication on January 15, 2014, the California Court of Appeal (Third Appellate District) held that determining the impairment rating for a claimant’s condition by analogy is permissible when the claimant’s condition is manifested only by his subjective expression of pain. The court also explained that rating by analogy is not limited to complex or extraordinary cases.

Arthur Cannon injured his foot while working as a police officer for the City of Sacramento.  An agreed medical examiner (AME) concluded that Cannon’s pain had no accompanying objective measurement and did not rate anything in the AMA Guides for evaluating permanent impairment.  However, based on the Workers’ Compensation Appeals Board’s (WCAB) Almaraz/Guzman decision which noted the AMA Guides state that in evaluating impairment a physician must use his or her clinical skill and judgment, the AME rated Cannon’s condition by analogy to the part of the AMA Guides dealing with a limp and arthritis.

The City of Sacramento challenged the AME’s rating.  The WCAB rejected the City’s challenge.

In its appeal to the Court of Appeal, the City made two arguments. 

First, in enacting the 2004 amendments to California’s workers’ compensation laws the Legislature provided that determinations of impairment should incorporate the AMA Guides so that decisions are based on objective findings. The City contended that the AME’s rating was inconsistent with the Legislature’s intent because no objective abnormalities were found and the AME’s rating was based on subjective complaints of pain.

Second, the Court of Appeal’s (Sixth Appellate District) 2010 decision in Milpitas Unified School Dist. v. Workers’ Compensation Appeals Board held that rating by analogy is permissible only in complex or extraordinary cases.

The Court of Appeal ruled that there was no merit in the City’s arguments.

On the first argument, the court concluded that there is nothing in the 2004 amendments that precludes a finding of impairment based on subjective complaints of pain where no objective abnormalities are found. The court pointed out the Legislature did not intend that there should be a mechanical application of the AMA Guides; instead, impairment decisions are to incorporate the AMA Guides. The Court of Appeal found that the AME “complied with this legislative directive by rating Cannon’s condition by analogy to the part of the AMA Guides dealing with a limp and arthritis. The city’s argument that he was not allowed to do so because Cannon’s condition had no objective manifestation is without merit.”

On the second argument, the court asserted that the City’s interpretation of the Milpitas Unified decision was unwarranted. The court explained that the term “complex or extraordinary cases” in the decision only applied to syndromes that are poorly understood. Rather, than being inconsistent with Milpitas Unified, the court found that Cannon’s condition “appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides ‘calls for the physician’s exercise of clinical judgment to assess impairment more accurately.’”

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