ADJ15807564 · November 18, 2022

The WCAB found the AME Dr. Stark's report substantial evidence supporting a 31% permanent partial disability rating, rejecting defendant's argument for a lower rating based on strict AMA Guides application.

From the decision · page 2BACKGROUND Applicant claimed injury to his low back while employed by defendant as a deputy sheriff on January 16, 2022. AME Dr. Stark evaluated applicant on March 24, 2022. Dr. Stark examined applicant, took a history and reviewed the medical record. He diagnosed applicant as having a lumbar strain that was aggravating multilevel disc bulges, and low back pain. (Joint Exh. 100, Dr. Stark, March 26, 2022, p. 4.) He then stated:

Dr. Stark's medical report was the only medical evidence submitted and was found to be substantial evidence supporting the permanent disability rating.

Favours Applicant prevailed

The WCAB relied on Dr. Stark's report as the sole substantial medical evidence to uphold the 31% permanent partial disability rating.

From the decision · page 3It is well settled that the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378. [35 Cal.Comp.Cases 525].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis, and the reasoning, in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) "[W]orkers' compensation law favors agreed medical examiners in resolving medical disputes fairly and expeditiously." (Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1444 [70 Cal.Comp.Cases 294].) As noted by the WCJ, Dr. Stark was presumably chosen by the parties to examine applicant in the capacity of an AME because of his expertise and neutrality, so his opinions should be followed unless there is good reason to set them aside. (see Report p. 2; Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

Dr. Stark diagnosed lumbar strain aggravating multilevel disc bulges and low back pain, and opined that the strict AMA Guides rating underestimated the applicant's disability. He provided a 15% whole person impairment rating based on analogy to a hernia impairment table, supporting a higher permanent disability rating.

Dr. Stark explained that the AMA Guides DRE lumbar category II rating of 8% did not accurately reflect the applicant's disability, which prevented certain lifting activities, and thus rebutted the strict rating using Table 6-9 for abdominal hernias as per Almaraz/Guzman decisions.

From the decision · page 2BACKGROUND Applicant claimed injury to his low back while employed by defendant as a deputy sheriff on January 16, 2022. AME Dr. Stark evaluated applicant on March 24, 2022. Dr. Stark examined applicant, took a history and reviewed the medical record. He diagnosed applicant as having a lumbar strain that was aggravating multilevel disc bulges, and low back pain. (Joint Exh. 100, Dr. Stark, March 26, 2022, p. 4.) He then stated:

AMA Guides to the Evaluation of Permanent Impairment (AMA Guides)

Used as a guideline for rating permanent disability, with allowance for rebuttal under Almaraz/Guzman decisions.

From the decision · page 4identify applicant's disability. He then explained that the reason for using the Table 6-9 (Impairment Due to Herniation) was because it addresses the impairment caused by applicant's inability to do heavy lifting. (Joint Exh. 100, pp. 4 - 5.) Dr. Stark referred to the "Almaraz/Guzman decisions" wherein the Appeals Board, and subsequently the Sixth District Court of Appeal, explained that the AMA Guides provide guidelines for the exercise of professional skill and judgment which, in a given case, may result in ratings that depart from those based on the strict application of the AMA Guides. (Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc) (Almaraz/Guzman II) affirmed by Milpitas Unified School Dist. v. Workers' Compensation Appeals Board (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (modified on other grounds on September 1, 2010).) Dr. Stark's explanation of why he rated applicant's lumbar spine impairment by "analogy" to the AMA Guides hernia impairment is consistent with the reporting doctor's responsibility to correctly identify the injured worker's disability as explained in the "Almaraz/Guzman decisions" discussed above.

Almaraz/Guzman decisions

Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084

Allows rebuttal of strict AMA Guides ratings to reflect accurate disability.

From the decision · page 4identify applicant's disability. He then explained that the reason for using the Table 6-9 (Impairment Due to Herniation) was because it addresses the impairment caused by applicant's inability to do heavy lifting. (Joint Exh. 100, pp. 4 - 5.) Dr. Stark referred to the "Almaraz/Guzman decisions" wherein the Appeals Board, and subsequently the Sixth District Court of Appeal, explained that the AMA Guides provide guidelines for the exercise of professional skill and judgment which, in a given case, may result in ratings that depart from those based on the strict application of the AMA Guides. (Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc) (Almaraz/Guzman II) affirmed by Milpitas Unified School Dist. v. Workers' Compensation Appeals Board (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (modified on other grounds on September 1, 2010).) Dr. Stark's explanation of why he rated applicant's lumbar spine impairment by "analogy" to the AMA Guides hernia impairment is consistent with the reporting doctor's responsibility to correctly identify the injured worker's disability as explained in the "Almaraz/Guzman decisions" discussed above.

Dr. Stark's medical report was the only medical evidence submitted and was found to be substantial evidence supporting the permanent disability rating.

From the decision · page 3It is well settled that the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378. [35 Cal.Comp.Cases 525].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis, and the reasoning, in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) "[W]orkers' compensation law favors agreed medical examiners in resolving medical disputes fairly and expeditiously." (Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1444 [70 Cal.Comp.Cases 294].) As noted by the WCJ, Dr. Stark was presumably chosen by the parties to examine applicant in the capacity of an AME because of his expertise and neutrality, so his opinions should be followed unless there is good reason to set them aside. (see Report p. 2; Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)