An analysis and discussion of the recent WCAB decision of Kave v. State 2022 Cal. Wrk. Comp. P.D. LEXIS 317
By Kenneth Kingdon, Esq.
Law Offices of Kenneth Kingdon
San Pedro, California
- Was the injury addressed by the Guides?
- Do the Guides discuss how to rate injuries for which it does not provide a rating?
The WCAB upheld the doctor who determined that the applicant’s injury was not addressed in the Guides and therefore was ratable by analogy to some other injury.
The applicant injured his bilateral gastrocnemius muscles, a significant muscle in the lower leg. The treating doctor said there was no rating in the Guides for this injury and analogized to tables in the Guides, citing Almaraz/Guzman.
The WCAB may have reached the correct result but for the wrong reason. The doctor said that there was no rating in the Guides for damage to this particular muscle. That is false. The Guides is not a medical encyclopedia with a list of every possible body part or syndrome. Gray’s Anatomy alone has over 1,000 pages. While some impairments are specifically listed in the Guides, most are not. Ratings are based on the impact of the injury on ADLs. There is not a comprehensive list of every muscle in the lower extremity or in any other region of the body.
Rather, Chapter 17, The Lower Extremities chapter, provides a list of 13 possible methods that are used to rate any lower extremity injury. It does not provide a list of the hundreds of possible body parts and syndromes.
Among the list of potentially applicable methods to rate this applicant’s injury found in Chapter 17 include atrophy, arthritis, peripheral nerve injury, vascular, CRPS, range of motion, gait derangement, and strength loss, so the injury to this body part is rated in the Guides.
The WCAB noted that to apply Almaraz/ Guzman, the doctor must first calculate the strict rating and then explain why that is not accurate and the alternative rating is more accurate. The doctor failed to do that. He did not provide a strict Guides rating.
Had he done that, using the multiple options provided by Chapter 17, he may have decided that the strict rating was not accurate and then applied Almaraz/Guzman, but we don’t know.
This was not an Almaraz/Guzman issue. Almaraz/Guzman is for strict ratings that are not accurate. In the extremely rare case in which there is an injury not addressed in the Guides, which is not this case, the Guides state on page 11 that the doctor should analogize to another table. In this case, the defense should have requested that the doctor provide a strict rating using the multiple options provided for in Chapter 17, and that rating might have been acceptable to the doctor and might have rated less than the final rating put forward by the doctor. Kenneth Kingdon is the editor and publisher of the Kingdon Rating Newsletter which issues on a quarterly basis and provides analysis of current case law and current issues in impairment and disability rating put forward by the doctor.
Kenneth Kingdon is the editor and publisher of the Kingdon Rating Newsletter which issues on a quarterly basis and provides analysis of current case law and current issues in impairment and disability rating