Fresno, Bakersfield, Stockton, Bishop,
Oakland, Sacramento, Salinas, San Jose,
San Luis Obispo, Santa Barbara
Cannon Appellate Decision and The Cannon Ball Effect It Will Have
By Nicole Rothford
The published Appellate Court decision of City of Sacramento v. WCAB (Arthur Cannon) clarified the definition of “complex and extraordinary” cases as previously discussed in Milpitas Unified School District v. WCAB (Guzman).
Arthur Cannon was a police officer for the City of Sacramento and sustained an industrial injury to his left foot and heel resulting in a diagnosis of plantar fasciitis. The AME, Dr. William Ramsey, identified a small bone spur but opined there were no objective findings resulting in disability; only subjective findings as complained by the applicant in the form of limitations in his activities of daily living. Originally the AME found no permanent disability. Applicant’s attorney requested a supplemental report addressing the issue of Almaraz/Guzman decision in finding permanent disability. Dr. Ramsey issued a supplemental report finding permanent disability by analogy, utilizing the gait derangement table in the AMA Guides.
After an adverse finding from the WCAB, the City petitioned for review, relying on two arguments; 1) Mr. Cannon did not have objective findings of disability and therefore rating by analogy is inappropriate, and 2) the condition of plantar fasciitis is not “complex and extraordinary” and therefore rating by analogy is not permitted under the Milpitas decision.
The Third District Court of Appeals disagreed with both of the City’s arguments. The court held its interpretation of Labor code §4660 does not require strict compliance with or mechanical application of the AMA Guides when a doctor is assessing impairment. The court further clarified that if the legislature intended a strict approach it would have utilized different language in order to compel strict adherence to the AMA Guides. The court applied its interpretation of Labor Code §4660 to the City’s argument and rejected the City’s contention that there can be no rating by analogy without both subjective and objective findings.
The court further held that a doctor does not have to opine a case is “complex and extraordinary” to justify rating by analogy. The court narrowed down the definition of complex and extraordinary cases to encompass those cases where the AMA Guides do not account for the impairment(s) or the “syndrome is poorly understood and only manifested by subjective complaints.”
For those reasons, the court held that the doctor is required to use his clinical judgment and expertise to rate by analogy to another section. The court also addressed the City’s argument that a case must be found to be complex and extraordinary under the Milpitas Unified School District decision in order for rating by analogy to be appropriate. The court held in this regard that the City’s interpretation of the Milpitas case was incorrect and Milpitas never held that a case must be determined to be complex and extraordinary before a doctor may rate by analogy.
A published case is citable, binding authority and undoubtedly will be utilized by the courts and applicant’s attorneys to further justify the scope of when rating by analogy is appropriate. However, when taking a closer look at the language used by the court, the opinion does leave room for interpretation. The court’s attempt to unfetter a medical-legal evaluator’s utilization of a rating by analogy may have resulted in the opposite effect when they narrowly defined when an A/G rating is appropriate.
The court held that rating by analogy is not limited to complex and extraordinary cases, as argued by the City, but is appropriate when the AMA Guides do not account for the impairment or when “a syndrome is poorly understood and manifested by subjective complaints only.” Therefore, it would seem an argument could have merit if the AMA Guides has a table, chapter or method which properly accounts for an injured worker’s impairment. If that is the case, the doctor should not be permitted to rate by analogy only to achieve the desired result of a higher whole person impairment.
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