ADJ16533639 · July 22, 2024

The WCAB found Dr. Cox's permanent disability rating unclear regarding the proper gait derangement rating and whether the lifting capacity rating should be combined or used alternatively. The record was remanded for further development to clarify these issues consistent with AMA Guides and Almaraz/Guzman standards.

From the decision · page 6All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687], "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citation.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citation.] Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citation.]"

Dr. Cox's permanent disability rating was unclear on whether the gait derangement rating should be 15% or 20% WPI and whether the lifting capacity rating should be combined or used alternatively.

Favours neutral

This lack of clarity prevented the WCAB from affirming the permanent disability rating and necessitated further record development.

From the decision · page 6In this case, Dr. Cox must clearly state his final conclusions regarding permanent impairment. It is not clear to us whether Dr. Cox believes the proper gait derangement rating is 15% or 20% WPI and it is not clear to us whether Dr. Cox ultimately opined that any alternate rating should be combined with the scheduled rating or should be used in alternative to the standard rating (or whether the hernia loss of lifting rating should be utilized at all, as Dr. Cox seemed to use an enhanced gait derangement rating as an alternative rating in his August 19, 2022 report.)

Dr. Cox provided a permanent impairment rating for the right ankle including loss of range of motion, gait derangement, loss of muscle strength, and loss of lifting capacity. He combined gait derangement and lifting capacity ratings to a final 32% whole person impairment. However, his testimony was unclear on whether the gait derangement rating should be 15% or 20% and whether the lifting capacity rating should be combined or used alternatively.

The WCAB found Dr. Cox's rating unclear and requiring further clarification for proper application of AMA Guides and Almaraz/Guzman.

From the decision · page 1Dr. Cox wrote as follows with regard to the right ankle and hips permanent impairment1:

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Permanent disability ratings must be based on substantial medical evidence and reasonable medical probability, with clear reasoning behind the physician's opinion.

Applied to evaluate the sufficiency of Dr. Cox's permanent disability rating.

From the decision · page 6All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687], "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citation.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citation.] Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citation.]"

Almaraz v. Environmental Recovery Services (2009) 74 Cal.Comp.Cases 1127

A scheduled permanent disability rating may be rebutted by establishing that another method within the AMA Guides more accurately reflects the impairment, but the rating must still be consistent with the AMA Guides as a whole.

Applied to assess the validity of Dr. Cox's alternative rating methods and combination of impairments.

From the decision · page 6In Almaraz v. Environmental Recovery Services (2009) 74 Cal.Comp.Cases 1127 (Appeals Board en banc) (commonly known as, and hereinafter referred to as Almaraz II), we held that a "scheduled permanent disability rating may be rebutted by successfully challenging the component element of that rating relating to the employee's WPI under the AMA Guides... by establishing that another chapter, table, or method within the four corners of the Guides most accurately reflects the injured employee's impairment." (Almaraz II, 74 Cal.Comp.Cases at pp. 1095-1096.) However, although a physician is not locked into any particular evaluation method found in the AMA Guides, his or her rating must still be based on and consistent with the AMA Guides, as read as a whole." (Almaraz II, 74 Cal.Comp.Cases at p. 1104.) Our decision in Almaraz II was affirmed by the Court of Appeal in Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].

Dr. Cox's deposition testimony was unclear on the proper gait derangement rating and combination of impairments, leading to further record development.

From the decision · page 6In this case, Dr. Cox must clearly state his final conclusions regarding permanent impairment. It is not clear to us whether Dr. Cox believes the proper gait derangement rating is 15% or 20% WPI and it is not clear to us whether Dr. Cox ultimately opined that any alternate rating should be combined with the scheduled rating or should be used in alternative to the standard rating (or whether the hernia loss of lifting rating should be utilized at all, as Dr. Cox seemed to use an enhanced gait derangement rating as an alternative rating in his August 19, 2022 report.)