Grinberg: Guzman Rebuttal Just for Applicant’s Acquire?| Employees Compensation Information

By Gregory Grinberg

Thursday, March 11, 2021 | 61 | 0 | min read

It should come as no surprise to frequent readers that I am closely monitoring the fact that life is not fair. However, in addition to my own perception of the human experience, I often hear the complaint that the Workers’ Compensation Appeals Board’s decisions are particularly unfair towards defendants and that different standards of argument are applied depending on which party brings the argument.

Gregory Grinberg

So let’s look at the Savoie v State of California case. The medico-legal examiner found that the rigorous assessment under the AMA guides did not accurately reflect the impairment of the whole person and instead gave an opinion under Almaraz-Guzman. Nothing new here, is there? Well, the medico-legal reviewer was of the opinion that a lower impairment was a more accurate reflection of the WPI.

Oddly enough, the panel’s opinion does not reflect whether that medico-legal reviewer was an agreed medical reviewer or a qualified medical reviewer. Of course, an AME’s opinion would gain significantly more weight and respect, but the panel’s opinion does not reveal the status of that particular evaluator.

After the trial, the WCJ accepted the medico-legal reviewer’s opinions and found the rating to be based on the lower WPI of 18% rather than the strict AMA rating. However, the WCAB reversed the appeal process.

Why did the WCAB decide that Almaraz / Guzman’s opinion was insufficient?

First, the panel summarized the problem as follows:

“Here the defendant tries to use an alternative rating in order to reduce the permanent impairment of the applicant. Assuming that it is even possible to use Guzman to reduce a planned impairment, such an analysis must be scrutinized even more closely. “

The panel came to the conclusion that the refutation of the AMA guidelines was not adequately supported by the medical-legal reviewer and that “there is no need to determine whether it is ever permissible to reduce a planned impairment using a Guzman analysis”.

Why shouldn’t it be like that?

Guzman does not put any restrictions on the purpose of refuting the strict AMA guidelines. The only guidance is that the AMA guides can be refuted and if they are refuted the medico-legal assessor, whether AME or PQME, can use a different table or table to assess the impairment more accurately.

In Gomez v Castle & Cooke Inc., a 2012 panel ruling, the majority of the split panel confirmed the WCJ’s confidence in the “reverse” Guzman analysis of a QME to reduce the WPI that derives from the rigors Application of the AMA guidelines.

Similarly, the AME in Riley v City of Pasadena, a 2011 panel decision, was confirmed in an Almaraz / Guzman statement that excluded the WPI from strict AMA application.

In addition, Guzman does not provide instructions to examine any result that will benefit the defense more closely than what will benefit the claimants. As any chef will tell you, what is good for the goose is good for the beholder.

I am all in favor of restricting the use of Guzman and his descendants. In fact, I’ll be the first to volunteer that we should eliminate Guzman altogether, and both claimants and defendants can be bound by strict AMA guidelines.

In the meantime, however, it would make sense to the undersigned that if the AMA guides can be refuted, it does not matter, given the due process considerations, whether it is to the benefit or to the detriment of the injured workers.

Gregory Grinberg is the managing partner of Gale, Sutow & Associates’ SF Bay South office and a certified employee compensation law specialist. This post was reprinted with permission from Grinberg’s WCDefenseCA blog.

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