In a September 15, 2011 memorandum authored by DEU Manager Barry Knight, the Disability Evaluation Unit has issued new written procedures regarding the handling of summary ratings involving .
The DEU memorandum sets forth a specific procedure for providing AMA Guides and Almaraz/Guzman ratings cross-referencing each other using specific language in the rating. The companion ratings will be logged into the EAMS system.
Beginning in early 2010, the DEU commenced a procedure for annotating the existence of an Almaraz/Guzman analogy in a rating. Now, the procedure will be to issue both ratings, including the rating based on Almaraz/Guzman.
In the examples used by the DEU it is noted that a typical back injury case is expressed in terms of a DRE category II rating as well as an analogous rating to a hernia.
GMK notes with interest that the argument of hernia analogies to spinal ratings have previously been made to the WCAB in unpublished panel decisions and the WCAB has responded that analogizing spinal impairment to a hernia is the equivalent of a work restriction because hernia impairments are based in part on limitations in lifting. Because analogizing to the pre-2005 PDRS is not allowed as outside the four corners of the Guides, a hernia analogy would be inappropriate in such a case.
This unfortunate choice in the examples demonstrates the challenging legal environment that defendants now face with respect to these ratings. At every step in the system defendants must be vigilant in proper application of the AMA Guides, contesting improper Almaraz/Guzman analogies, and working to preserve the integrity of the intent of the legislature in its implementation of Labor Code §4660 as revised.
What this means for you
The prospect of routine Almaraz/Guzman ratings from the DEU heightens the necessity of consistently reminding evaluating physicians, the applicant attorney community, and where appropriate, workers’ compensation judges that the Guzman decision requires specific analysis in order constitute substantial evidence. The physician must first set forth the appropriate AMA Guides rating and then set forth in language meeting substantial evidence the rationale for applying an Almaraz/Guzman analogy. Failure to do so will mean the Guzman standard will not be substantial evidence upon which the WCJ should rely.
A copy of the DEU memorandum may be downloaded here.