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Milpitas Unified School District v. Workers' Compensation Appeals Board

August 19, 2010


(W.C.A.B. No.ADJ3341185) (SJO 0254688).

The opinion of the court was delivered by: Elia, J.


In this original proceeding the Milpitas Unified School District (District) challenges a decision of the Workers' Compensation Appeals Board (WCAB or Board) applying Labor Code section 4660*fn1 to the disability evaluation of a District employee. The Board ruled that (1) an employee's impairment may be determined by reference to any applicable portion of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (Guides), and (2) this determination may be used to rebut the rating of permanent disability established by the 2005 Schedule for Rating Permanent Disabilities ("PDRS" or Schedule). This court granted the District's petition for review. We conclude that the language of section 4660 permits reliance on the entire Guides, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case. We will therefore affirm the Board's decision.


Guzman worked for the District as a temporary employee beginning in October 2001 and as a permanent employee, a secretary/clerk, from September 2002 to May 2005. The District was permissibly self-insured for workers' compensation liability; Keenan & Associates was its workers' compensation adjuster.

On November 5, 2003, Guzman's right foot became entangled in some computer wires under her desk, and as she rose and turned away, she fell. Over the following two and a half years, she sought treatment for pain in various locations on her body, as well as for psychiatric symptoms that led to prescriptions for antidepressants. Unsatisfied with the tests and recommendations of her Kaiser Permanente physicians, she turned to her attorney, who referred her to Dr. Fatteh. He diagnosed degenerative disc disease and prescribed physical therapy, a home muscle stimulator (for back spasms), chiropractic, and acupuncture. Gradually, Guzman progressed from modified work hours to an eight-hour workday "with restrictions." A flare-up in May 2005 resulted in Dr. Fatteh's finding of a month-long total disability. On June 1, 2005, Dr. Fatteh noted Guzman's reduction in back and neck pain. While awaiting authorization for her to see a psychologist, she was to remain off work until August 1, 2005.

By September 2005 Dr. Fatteh reported that Guzman had experienced increased neck and low-back pain, and he did not believe she would be able to return to her usual work. He recommended further psychotherapy and vocational rehabilitation, while predicting that Guzman would become "permanent and stationary" within three months.*fn2

Guzman filed her first "Application for Adjudication of Claim" with the Workers' Compensation Appeals Board (WCAB) on February 9, 2004 (Case No. SJO 0244266), and a second application in August 2005 (SJO 0254688).*fn3 Steven D. Feinberg, M.D., the Agreed Medical Evaluator (AME), examined Guzman on April 11, 2005 and issued supplemental reports on her progress thereafter. Dr. Feinberg diagnosed bilateral carpal tunnel syndrome, which had not been detected previously and which was the result of cumulative industrial trauma. In June 2005, Dr. Feinberg reviewed Dr. Fatteh's notes and concurred in the recommendation that Guzman remain off work temporarily.

In his December 2, 2005 report, Dr. Feinberg noted Guzman's history of injuries prior to her employment with the District.*fn4 Guzman told him, however, that on November 5, 2003 she was in good health without any ongoing disability. Dr. Feinberg reported that Guzman continued to have cervical and lumbar discomfort as well as numbness and tingling in the hands "at times." Her symptoms were "worse with activity." Dr. Feinberg believed that Guzman was currently "permanent and stationary." Her spine condition precluded heavy lifting, and she had a "25% loss of her upper extremity preinjury capacity for pushing, pulling, grasping, gripping, keyboarding or fine manipulation." In an effort to apportion the disability, Dr. Feinberg attributed it to a combination of the 2003 injury, long-term work exposure, and other factors (e.g., genetics, habits, weight, and life exposure to non-industrial conditions). Without speculating, however, he was unable to assign a percentage of the contribution from non-industrial factors in this situation; consequently, he expressed the opinion that "the approximate percentage caused by the industrial injury/exposure is 100%."

On August 23, 2006, responding to a request for clarification from the District's attorney, Dr. Feinberg clarified his "apportionment" findings. He explained that the November 2003 injury was responsible for the spine disability (which precluded heavy lifting) and the 25 percent loss of her preinjury capacity for pushing, pulling, grasping, gripping, and fine manipulation.

On July 13, 2007, Dr. Feinberg responded to a request by the District that he re-analyze the extent of Guzman's permanent disability in accordance with the Guides, using Version 2.49 of the Dexter Evaluation and Impairment Software. Dr. Feinberg re-examined Guzman and reported a total "whole person impairment"*fn5 of 14 percent, consisting of three percent on each upper extremity due to carpal tunnel syndrome, five percent impairment related to the lumbar spine, and five percent impairment related to the cervical spine injury.

On March 21, 2008, Dr. Feinberg again examined Guzman. He related the patient's treatment history, including extended psychotherapy for depression, and noted that she continued to have cervical and lumbar "discomfort" as well as numbness and tingling in the hands, a loss of grip strength, and pain in her right leg. Dr. Feinberg concluded that she was "certainly" permanent and stationary at that time. He again estimated her upper extremity loss to be 25 percent of her preinjury capacity "for pushing, pulling, grasping, gripping, keyboarding or fine manipulation," and again he could not reliably apportion the loss between the injury and non-industrial causes. Consequently, he assigned 100 percent causation to the "industrial injury/exposure."

Guzman's attorney asked for clarification of the 25 percent loss estimate. Dr. Feinberg explained that for the patient's low back and neck pain, "the 'old' PDRS should be used and that the new AMA-based PDRS was applicable to the bilateral upper extremities." He reiterated that Guzman was "precluded for her upper extremities from very forceful, prolonged repetitive and forceful repetitive work activities." Dr. Feinberg pointed out that "there is often a discrepancy between the disability and the impairment. The type of problem she has is legitimate but does not rate very much (if anything) under the AMA Guides. Based on her ADL [Activities of Daily Living] losses, each upper extremity would have a 15% WPI [(] 25% of 60%). This is not a method that is sanctioned by the AMA Guides."

Guzman's case was tried on July 10 and October 3, 2008. By stipulation, the 1997 PDRS was applied in SJO 244266, while the 2005 PDRS was applied in SJO 254688, the upper extremity trauma. She had already been compensated for her temporary disability; only the extent and apportionment of her permanent disability were at issue.

Karen Wong, the evaluator from the Disability Evaluation Unit (DEU), testified that the Guides did not permit a medical evaluator to compute WPI directly from ADL loss.*fn6 "She d[id]n't know why it's improper for the doctor to complete his own whole person impairment directly from ADL loss, but she [was] confident that the AMA Guides don't allow it."*fn7 If the 15 percent WPI figure Dr. Feinberg referred to were used for each upper extremity, each would yield a 22 percent permanent disability, which would combine to amount to a 39 percent overall permanent disability. However, Wong instead relied solely on the "carpal tunnel" portion of Dr. Feinberg's March 21, 2008 report, which allowed up to five percent for each upper extremity. Thus, relying on Dr. Feinberg's assignment of impairment based on the Guides, Wong rated Guzman's WPI as three percent for each upper extremity, for a total permanent disability of 12 percent.

In an October 22, 2008 amended ruling, the Workers' Compensation Judge (WCJ) found that Guzman had sustained permanent partial disability of 41 percent in SJO 244266 and 12 percent in SJO 254688. The WCJ's decision was based on Dr. Feinberg's opinions as well as psychiatric reports by Michael D. Goldfield, M.D. The WCJ found no sufficient basis for attributing any permanent disability to Guzman's psychiatric injury, which was inseparable from the 2005 physical injury.

Noting the discrepancy between Dr. Feinberg's assessment of Guzman's injury outside the rating system provided in the Guides, the WCJ stated, "Applicant has advanced the theory that, since Dr. Feinberg has opined that the Applicant's impairment precludes a higher level of ADL's than described in the AMA Guides, Dr. Feinberg's report is a sufficient rebuttal of the Schedule and should be rated outside AMA [sic]. While the exact quantum of evidence required to rebut the PDRS has yet to be established by case law, I feel certain that a single paragraph in an AME report does not suffice. In particular, Dr. Feinberg provides no data or clinical observations in support of his opinion; his opinion seems to be, rather, that the [G]uides generally underrate this impairment. He may be correct; he is certainly a highly respected and qualified physician; but without a significant amount of objective data I am unwilling to accept his opinion, standing alone, against that of the Legislature."

Guzman petitioned for reconsideration of Case No. 254688 with the WCAB, contending that the evidence did not support the factual findings, the findings did not support the award, and the WCJ had exceeded his authority.*fn8 Relying on Dr. Feinberg's report of a 15 percent WPI per upper extremity (from 25 percent ADL loss), Guzman contended that her permanent disability "should be an adjusted 39 %, based upon the AME's clinical judgment and reporting, and the DEU rater's 10/03/2008 testimony." Guzman maintained that this method of calculation was consistent with the Guides. She was not, she insisted, seeking to rebut the current permanent disability schedule, but instead "to appropriately and accurately apply it." The Guides themselves, she argued, required the evaluating physician to exercise clinical judgment, and to take note of any functional loss of ADLs in deriving an impairment rating. Thus, it was a "mistake" to believe that the AMA did not approve of Dr. Feinberg's method of assessing impairment based on functional loss of ADLs. The WCJ should have recognized that the application of clinical judgment to the AME's assessment of impairment and disability, including impairment of ADLs, was consistent with the current PDRS.

Keenan & Associates responded that substantial evidence supported the WCJ's decision. If Guzman disagreed, she should have retained an expert to rebut Wong's rating. The WCJ agreed, noting that no direct evidence contradicted the expert opinion that the Guides may not be bypassed in favor of a physician's independent evaluation method. "On this record, it ...

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