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City of Sacramento v. Workers' Compensation Appeals Board

California Court of Appeals, Third District

December 26, 2013

CITY OF SACRAMENTO Petitioner,
v.
WORKERS’ COMPENSATION APPEALS BOARD and ARTHUR CANNON, Respondents.

Certified for publication 1/15/14 (order attached)

APPEAL from a decision of the Workers’ Compensation Appeals Board Super. Ct. No. ADJ7238353

Laughlin, Falbo, Levy & Moresi and Sidney L. Lamb; Lenahan, Lee, Slater & Pearse and Gerald M. Lenahan for Petitioner.

Mastagni, Holstedt, Amick, Miller & Johnsen; Jonathan W.A. Liff, Eric D. Ledger for Respondent Arthur Cannon.

No appearance for Respondent, Workers’ Compensation Appeals Board.

ROBIE, J.

In this workers’ compensation case, an agreed medical examiner determined that respondent Arthur Cannon’s left foot condition -- plantar fasciitis -- was equivalent to a limp with arthritis, which resulted in a 7 percent whole person impairment for purposes of determining permanent disability. On review, Cannon’s self-insured employer, the City of Sacramento (the city) contends a rating of impairment by analogy to a different condition is impermissible when (as here) no objective abnormalities are found and the rating is based solely on subjective complaints of pain. The city also contends that a “rating by analogy” is permissible only in complex or extraordinary cases, and plantar fasciitis is neither.

Finding no merit in the city’s arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2008, Cannon injured his left foot and heel while working as a police officer for the city. He was diagnosed with plantar fasciitis and provided with physical therapy, cortisone injections, and an orthotic device. His primary treating physician found him permanent and stationary in January 2010, with no impairment of his activities of daily living and capable of performing his usual occupation.

In October 2010, an agreed medical examiner, Dr. William Ramsey, agreed Cannon was permanent and stationary and that there was no impairment but recommended that he be precluded from such things as prolonged running.

In February 2011, at the request of Cannon’s attorney, Dr. Ramsey issued a supplemental report “to comment regarding [Cannon]’s impairment status using Almaraz/Guzman-II issues.”[1] Dr. Ramsey explained that at the time of his original report in October 2010, he was “unable to offer any impairment from a strict interpretation of the AMA Guides, 5th Edition[2] because “other than some tenderness, no objective abnormalities were identifiable.” Now, however, Dr. Ramsey determined that it was acceptable to characterize Cannon’s residual condition “using a gait derangement abnormality” “by analogy, using Almaraz/Guzman-II as a basis.” Noting that Cannon’s problem was “relatively mild, ” with “the left heel causing weightbearing problems” and the likelihood that the condition “would... be aggravated appreciably by running activity on other than a short-term basis, ” Dr. Ramsey recommended characterizing Cannon by reference to “Table 17-5, page 529, ” as having “a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to 7% whole person impairment.”

In June 2011, at the request of the city’s attorney, Dr. Ramsey issued a second supplemental report “to further discuss the basis for [his] recommending some impairment due to [Cannon]’s residual heel complaints.” In this report, Dr. Ramsey noted that “heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities. Thus, a strict interpretation of the Guides does not always appropriately characterize an injured worker’s problems.” Dr. Ramsey explained because Cannon’s heel pain “interferes with weightbearing activities, particularly running, ” he “thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended.”

The case was tried in October 2011. In a trial brief, the city argued that a rating by analogy under Almaraz/Guzman would be proper only if the case could be characterized as “complex or extraordinary, ” which Cannon’s injury could not be. The workers’ compensation judge (judge) agreed, finding that Cannon had no permanent disability because his medical condition was not complex or extraordinary and therefore did not warrant departure from a strict application of the AMA Guides.

Cannon petitioned for reconsideration, arguing that a case does not have to be complex or extraordinary to be rated by analogy under Almaraz/Guzman. The board granted reconsideration and, agreeing with Cannon, rescinded the judge’s findings and award and returned the matter to him for a new permanent disability rating based on Dr. Ramsey’s findings. With one member dissenting, the board explained that “the language cited by the [judge] to limit a rating by analogy only to cases with ‘complex or extraordinary’ medication conditions does not support his interpretation. Rather than further restrict a physician’s expertise, this language should be read to reflect the ability of a physician to rate an impairment by analogy, within the four corners of the Guides, where a strict application of the Guides does not accurately reflect the impairment being assessed.” The board noted that Cannon’s “condition, plantar fasciitis, does not have a standard rating, with no specifically applicable ‘chapter, table or method’ provided in the AMA Guides, and thus can only be rated by analogy to other impairments, and/or by analysis ...


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