What the panel ordered
Defendant's Petition for Reconsideration is denied.
Defendant filed a Petition for Reconsideration of the Findings and Award issued by the WCJ on July 13, 2022.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB found that the QME Dr. Joseph Sclafani's alternative rating using Almaraz/Guzman analogy was substantial evidence supporting a 29% permanent disability rating, rejecting the defendant's contention for a strict rating.
From the decision · page 2Defendant contends that the qualified medical evaluator (QME) Dr. Joseph Sclafani improperly rated applicant's impairment based on a lifting work restriction. This contention is unsupported by the record. Dr. Sclafani found that the strict rating of applicant's impairment "is not commensurate with the applicant's disability" and "does not accurately reflect the impact of this injury on applicant's activities of daily living and work capacity." (Joint Exhibit AA, QME Report by Dr. Joseph Sclafani, February 15, 2022, pp. 6-7.) He explained that "applicant's
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Sclafani found the strict rating did not accurately reflect the applicant's disability and provided an alternative rating using Almaraz/Guzman analogy.
Favours Applicant prevailed
This was substantial evidence supporting the permanent disability rating of 29%.
From the decision · page 3Dr. Sclafani explained why the strict rating did not accurately reflect applicant's impairment and utilized his judgment, experience and training to provide an alternative rating from within the four corners of the Guides that more accurately reflects applicant's impairment. He did not improperly use a work restriction to rate applicant's impairment since he opined that the Almaraz/Guzman rating was warranted to account for the impact of lifting on his activities of daily living (ADLs). Although Dr. Sclafani referred to "work capacity," which is not an ADL per the AMA Guides, he also explained that the rating is more accurate based on how this affects his ADLs. We therefore agree with the WCJ that Dr. Sclafani's reporting regarding applicant's impairment rating is substantial evidence to support an alternative rating per Almaraz/Guzman. (See e.g., Scott's Jack London Seafood, Inc. v. Workers' Comp. Appeals Bd. (Fitzsimmons) (2011) 76 Cal.Comp.Cases 1348 (writ den.) [QME's ratings analogizing to herniation and gait derangement were substantial evidence even though applicant did not have a hernia or lower extremity injury].)
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Sclafani found that the strict rating did not accurately reflect the applicant's disability and used an analogy to a hernia condition under Almaraz/Guzman to provide an alternative rating of 15% WPI, which the WCAB found substantial evidence to support a 29% permanent disability rating.
Dr. Sclafani explained why the strict rating did not accurately reflect the applicant's impairment and used clinical judgment within the AMA Guides to provide an alternative rating.
From the decision · page 2Defendant contends that the qualified medical evaluator (QME) Dr. Joseph Sclafani improperly rated applicant's impairment based on a lifting work restriction. This contention is unsupported by the record. Dr. Sclafani found that the strict rating of applicant's impairment "is not commensurate with the applicant's disability" and "does not accurately reflect the impact of this injury on applicant's activities of daily living and work capacity." (Joint Exhibit AA, QME Report by Dr. Joseph Sclafani, February 15, 2022, pp. 6-7.) He explained that "applicant's
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660.1(d); Almaraz-Guzman III (2010) 187 Cal.App.4th 808
Scheduled rating is prima facie evidence of permanent disability but rebuttable by a more accurate AMA Guides method under Almaraz/Guzman.
The WCAB applied this standard to evaluate the QME's alternative rating and found it substantial evidence to support the permanent disability rating.
From the decision · page 1Pursuant to Labor Code section 4660.1(d), the scheduled rating is prima facie evidence of an employee's percentage of permanent disability. (Lab. Code, § 4660.1(d).) However, the scheduled rating is rebuttable. (See Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman III) (2010) 187 Cal.App.4th 808, 852-853 [75 Cal.Comp.Cases 837]; see also Lab. Code, § 4660.1(h) ["In enacting the act adding this section, it is not the intent of the Legislature to overrule the holding in Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808."].) Specifically, the whole person impairment (WPI) portion of the scheduled rating may be rebutted by showing that "a different chapter, table, or method of assessing impairment of the AMA Guides more accurately reflects the injured employee's impairment than the chapter, table, or method used by the physician being challenged." (Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School Dist. (Almaraz- Guzman II) (2009) 74 Cal.Comp.Cases 1084, 1106 (Appeals Board en banc).) Physicians must still evaluate permanent impairment while staying within the "four corners of the Guides" pursuant to the Labor Code. (Id. at p. 1101.)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Sclafani's explanation and use of clinical judgment to depart from strict AMA Guides rating to better reflect applicant's impairment.
From the decision · page 3Dr. Sclafani explained why the strict rating did not accurately reflect applicant's impairment and utilized his judgment, experience and training to provide an alternative rating from within the four corners of the Guides that more accurately reflects applicant's impairment. He did not improperly use a work restriction to rate applicant's impairment since he opined that the Almaraz/Guzman rating was warranted to account for the impact of lifting on his activities of daily living (ADLs). Although Dr. Sclafani referred to "work capacity," which is not an ADL per the AMA Guides, he also explained that the rating is more accurate based on how this affects his ADLs. We therefore agree with the WCJ that Dr. Sclafani's reporting regarding applicant's impairment rating is substantial evidence to support an alternative rating per Almaraz/Guzman. (See e.g., Scott's Jack London Seafood, Inc. v. Workers' Comp. Appeals Bd. (Fitzsimmons) (2011) 76 Cal.Comp.Cases 1348 (writ den.) [QME's ratings analogizing to herniation and gait derangement were substantial evidence even though applicant did not have a hernia or lower extremity injury].)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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