Dr. John Alchemy outlines the Almaraz/Guzman II ruling in respects to California workers’ compensation, detailing when it should be applied, how it should be applied, and why it’s so important for both physicians and injured workers.
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Transcription of Podcast:
Cory Oleson (Host): Welcome to the California Work Comp Report Podcast. It’s Thursday, March 11, 2021. Today we speak with Dr. John Alchemy about the Almaraz/Guzman decision and how it applies to California workers compensation cases.
Today we are discussing Almaraz/Guzman and the Almaraz/Guzman law and how it applies to workers comp claims in California. Again this is your host, Cory Oleson, here with the other host – I don’t know about host, or co-host, what is what, but – I am here with Dr. John Alchemy. How are you, John?
Dr. John Alchemy: Doing well, Cory, how are you doing?
Cory: Doing good, doing good. Yeah so if I understand Almaraz/Guzman correctly, in California the way I would describe it, as a non workers comp professional, who’s reading into this, it’s essentially a law that allows for workers comp physicians and professionals to give an impairment rating that is different from the rating that is calculated based on the AMA guides. So if you do a calculation for the impairment based off the AMA guides, and you determine that your patient has 3% whole person impairment in a certain body part, but you as the physician, the professional who’s basically seen the patient through the course of the claim, you think it might be more than that, or even less than that, then you would therefore invoke Almaraz/Guzman. Am I understanding that correctly, John?
Dr. John Alchemy: Yeah, the Almaraz/Guzman dates back to around 2009, when there were a couple of cases that came up and basically the doctors who were doing the ratings thought that the chapter rating, or the “four corners” as they refer to it, and I like to point out that the AMA guides actually has eight corners on it, but we call it four corners. But within those four or eight corners there are chapter ratings and you follow the directions and you get a rating value.
And these particular doctors in these particular cases decided that the ratings should be higher, or more than what the standard AMA guides did. And remember, the AMA guides in California came in around 2005 into existence, and these didn’t come around until 2009. Which is a little bit amazing to me because really, what took so long, for this whole idea to come up and get formalized? But that’s probably another story. But that’s right. So the doctor does not think that the book gives the injured worker enough impairment.
Cory: Just leading off with this, because the outcome of the Almaraz/Guzman case kind of reminds me of a quote from a film made by a very large film company, it’s a film about some pirates. And when questioned about the code of pirates, the captain of one of the ships says “those are more like guidelines.”
And I think about the AMA guides as it relates to this case because that’s kind of what’s been determined with the Almaraz/Guzman is one of the strict measures of the AMA guides is that this rating is law, but as you said and as it’s sort of apparent, you can’t really confine the infinitesimal things that can happen in a work comp case to what it says in this book. And the fact that it took four years to implement that is kind of crazy. So the AMA guides – we’ve discussed this before, but it must have slipped my mind – were invented around 2004, 2005, did California have its own rule set before that or was it a former version of the AMA guides it was working off of?
Dr. John Alchemy: No they did, and some states still do, have their own rules for creating disability injuries and work comp injuries, and California had its own, and it went bases on pain, and frequency, and the objective findings, and functional loss, as far as work restrictions and things like that. That for the most part has kind of been phased out, we don’t do those ratings unless it’s under extremely special circumstances, if there’s an original claim that needs to be revisited. But most of our claims are issued over to the AMA guides.
And getting back to the Almaraz/Guzman, the Almaraz/Guzman really addresses two flavors of situations and I think it’s good for the listeners to understand this. One is, when the rating value simply doesn’t match the patient’s functional loss, that’s one of them.
And the other one if you reads some of the determinations, the other application for it is when you’re trying to do conditions that the AMA guides simply do not list. It’s not a rate-able condition. It’s under those two situations that Almarz/Guzman comes into play for the most part, in my experience from what I’ve seen and reviews I’ve done, it’s usually been that the doctor for some reason doesn’t feel like the AMA guides fifth addition rating is an accurate rating of the individual’s loss. That’s usually what it is, 9 times out of 10.
Cory: And as we’ve discussed before, the fifth addition isn’t even the most recent version of the AMA guides, so it’s an inevitability that as the field of medicine evolves, and that will certainly be intertwined with the law, and Almaraz/Guzman is essentially an inevitability, as far as it looks, based off that. So now as a work comp physician, if you run into a case where you need to, I’m using the word “invoke” – I’m not even sure if that’s the proper wording for it, but what is involved in doing so? Do you have to alert the insurer that you’re doing so? Do you have to give a special section of the report that outlines that? What does it look like?
Dr. John Alchemy: Yeah, so, if you look at the Almaraz/Guzman, the doctors really have instructions to do four steps. The first step is, you have to do the standard rating before anything else. So you do the rating. And then you have to make some type of argument, or comment, or statement, as to why this strict rating does not apply to the individual. So it doesn’t apply because of a, b, or c.
Next, you then have to provide an analysis about what your alternative rating is going to be. Something different. And then the fourth thing that you have to do is explain how you got there. And this, as a physician this is one of the more frustrating aspects of the Almaraz/Guzman, is that they’ve given us this tool or this option, but it’s not a very good tool, because there are no instructions on how to do it.
Whenever you set up a rule with no clear instructions, you’re gonna get ten different people trying to approach it ten different ways. And to me the most disappointing Almaraz/Guzman is when the doctor writes, “In my medical opinion, of twenty years as a blah blah blah, I think it should be seventeen instead of six.” And that to me is not really any type of explanation as to why you’re picking that number. But you see that if you look at reports, and maybe they get approved, maybe they don’t. But so far that is the most disappointing one.
Now the classic one is when the doctor says their patient has problems with their back. So if I do the strict rating, it’s 6%. But I know that for instance let’s just say I know they can’t do heavy lifting. So then they go off into the hernia chapter. They say hey look, if you had a hernia, and you can’t do any heavy lifting, you get a WPI of X, therefore my patient with a back injury that can’t do heavy lifting, must have a rating of at least X. And you know that’s come up and I think it’s been played and accepted, but the point is you want to stay focused on the actual body part and the chapter where that body part is supposed to be rated. And kind of do your thinking, and your conceptualizing in that chapter. Because you don’t want to start wandering around and having that number in mind, and then you’re just looking for an explanation for it. That’s what they don’t want, and I totally get that and I totally agree with it. So you want to stay in the chapter where the body part resides because those are all of the critical elements that pertain to that body part if that makes sense. So that’s another thing you’re going to read about. They’re going to ask why you went out of the chapter and ecetera, ecetera.
Again, since we weren’t really given any instructions on how to do this, you’re going to get all kinds of responses. So it makes it frustrating, it makes it very open ended, and in some ways, it makes it a little contentious. Because everyone’s right. If you’re going to pick a number different than what the book tells you, that’s going to be open to interpretation and criticism. Which is fine. We’ve gotta have some discussions about things in order to move the ball forward.
Cory: There’s no way to improve without criticism.
Dr. John Alchemy: Absolutely. So that does come up and it’s commonly contested and I think that people see opportunities from all sides as why or why not the Almaraz/Guzman would be best for their client and their case.
Cory: It’s kind of funny how these sorts of things work, when you introduce something into the law that’s supposed to make it in favor of the possibility that things will even out, and things aren’t so strictly adhering to these laws, as the science behind medicine evolves and new things come to light. And it does introduce by way of that, things get a little more complicated.
Now you had mentioned that it’s probably best practice for doctors to stay within the chapters that they’re working with and everything and I can’t help but imagine that even when all of those bases are covered, when an insurance adjuster sees the Almaraz/Guzman thing, that it just sort of, like we said, increases the likelihood of confusion overall, or is it more of a case that’s understood now that it’s law, you know, it flies by a little easier. Or does it always complicate things more when Almaraz/Guzman is used?
Dr. John Alchemy: I think it’s seen as a red flag for parties when they look at the report and see an Almaraz/Guzman being used because they think, what are we missing? What are we looking for in the report? Where’s the bright line in here that caused this to be triggered? And then the next thing is, I’m going to have to see if they can sell me on this or not, essentially is what it comes down to.
Cory: The Almaraz/Guzman was a decision of two separate cases and it was actually in the Guzman case that the person that brought the final impairment rating of the case, wasn’t really in alignment with what the actual impairment may be, was introduced actually in AME. It was the person who you bring on to double check everything said, this doesn’t match up. It is the second opinion that is saying this is outside of the guide. So I think that’s sort of a win in a way, because you don’t have an AME jump on the case unless there is contention or it’s something that needs to be examined by another medical professional.
Dr. John Alchemy: Yeah I mean, the AMEs come in for multiple reasons. But to check the ratings, all these things, they’re used a second check. And sort of a little bit of personal comment here – unfortunately, I think that the marketplace has seen some of the AMEs and QMEs have a better or more complete or more expertise in impairment ratings, and I’ve said this on previous podcasts, it’s absolutely not true. These QMEs and AMEs have no tests in competency in AMA writing any more than the primary treating physician. Nor is there any requirement by the state to show any competency in writing impairment ratings.
So unfortunately I think this has just kind of become folklore to some people. To think well I am getting a QME rating, it’s going to be better than the one my primary treater is giving me. And it’s absolutely not true. I’m wandering a little bit off topic, but we have to remember the Almaraz/Guzman came up during an AME exam way back when, and they’ve visited Almaraz/Guzman multiple times, I think we’re on version three right now, V3.0 or something, so it gets a little bit more consideration and refinement. But the main things we’re talking about here really haven’t changed.
Cory: Okay so, there’s a little bit more refinement until the next person has an issue, and then it goes back to court, until the end of time.
Dr. John Alchemy: Yep, you’re right, run through it again, and see what types of things can be fine tuned on it.
Cory: I mean, that’s built into bureaucracy as we know it. As soon as you get bored with one thing, you bring up another.
So yeah, this was a thing that I was wondering, as you’ve mentioned, you are a very busy person, and there were a few years there in between before they implementation of the AMA guides and Almaraz Guzman, and it makes me wonder, there are states that are still using the third addition of the AMA guides, things like that. And it makes me wonder if those types of protection are in place for people in other states. And the inevitability that they’ve been using the AMA guides for much longer and if people have any sort of protections out there. Now, like I said you’re a very busy person in that regard so I don’t know if you would know if other states have a similar thing or not.
Dr. John Alchemy: To be honest, I don’t know what alternative measures they have for assigning claim values in other states. But if you follow the AMA guides, and this was something I wanted to bring up as well in the talk, the AMA guides have provided this scenario like the Almaraz/Guzman but have stated it slightly different. And again it totally amazes me why it took so long for this to come up formally in the courts. When it was written in the AMA guide’s fifth addition off the press back in 2003 or whatever year it was originally published. But if you go to page five of the AMA guides fifth addition, it clearly defines what a 0% whole person impairment is for an individual. We’ve talked about this in some other podcasts, but it’s at the bottom of the page, left column. And just to paraphrase, it says “if you’re going to give someone a 0% whole person impairment rating, they cannot have any limitations in the performance of their activities of daily living.”
Cory: So they’re just as good walking out of the claim as they were right before they got into it.
Dr. John Alchemy: So the point is that the AMA guides knew there were situations where the function does not match the whole person impairment rating, which is simply a reflection of the function. But the AMA guides also fall short because it doesn’t say how to reconcile that. And this has been one of the great mysteries of worker’s comp and impairment rating for many years.
Now, when we created RateFast we came across this early on and decided we needed to come up with something that was analytic, objective, and reproducible. Again if you read the book you’re going to come away seeing that there are different grades of impairment purity. And the first one is the patient’s actual functional loss and documenting that. And then being able to come up with a chapter rating which the Almaraz/Guzman says you have to do. And then all it really comes down to is comparing two numbers. So if you know what someone’s functional impairment rating is, based on their pain, the frequency, their tolerance for activities, endurance of a particular ADL, and if you know what that impairment rating is and you know what the chapter rating is, it becomes a very simple exercise to know if someone comes in with the AMA guides on their rating.
But again the problem is that no one has ever really formalized that. And we’ve done that at RateFast for some time now. So all of our ratings get checked against the functional ratings. So if you get a back rating of 7, we do a functional rating on you, and we simply compare the two numbers. And on page 20 it says step two, everything needs to be within 10% of each other. So if the two numbers are within 10%, the “four corners” rating is good. You’re good to go. If your “four corners” rating is not within the 10% acceptable tolerance of the AMA guides, meaning that the functional rating is more than what the chapter has allowed you, then you use Almaraz/Guzman. And it’s very simple. Unfortunately not everyone uses RateFast or understands the level of detail or objectivity we’ve gone to. We’re hoping more stakeholders adopt it or think like we think.
Cory: We hope you do, we hope you make the decision!
Dr. John Alchemy: That’s right! What’s really interesting is once you set up the matrices on these and the thresholds, you can not only say when someone’s case is an Almaraz/Guzman, but you can also calculate what we call the overage. So we can say, this is 5% over the tolerance for the AMA guides chapter four corners, or 22% over. And then what we do is simply adjust the rating accordingly. And I personally have had very good luck while doing this. And for me personally, this is my opinion, body parts have maximal values. And they’re simply not going to be exceeded. Because the AMA guides have set up the upper bounds for the body part.
So let’s say your elbow. If you go to table 1618, page 499. You’re going to see that the value of the entire elbow is 42% whole person impairment. So to try to give someone an Almaraz/Guzman of 56% whole person impairment just doesn’t make any sense. Because if you’re trying to go above the maximum value, the amputation value if you will, really what are you doing? Why even have a book if we’re going to be going above the amputation value?
The book has given us boundaries of what the upper and lower body parts are, it’s in the chapter of the body part being considered. And you simply need to address it and scale it appropriately for what the maximal body part is. And I have never had any problems in depositions or discussions with the adjusters or patients, other doctors, using that method. Yet a lot of Almaraz/Guzman reports are meandering and they’re looking for a result that the doctor has in mind but maybe not sure how they’re going to support it or why they want to support it but they just feel like the number they have is too low. And sometimes that’s right, and sometimes it’s not.
It’s really interesting because once you start reading these reports, the numbers that are generated are 50, 60, 20, and they try to analogize them with something in the book that demonstrates an ADL that the table says you get for a certain impairment and you tie it to that. So it’s been a little frustrating for me with the Almaraz/Guzman to see a lot of this go on because it’s like guys, we should have figured this out a long time ago. And again this is my opinion, but we can’t have a system that says you can do something, but there are no instructions on how to do it at all. That’s where the Almaraz/Guzman really falls down in my opinion.
Cory: And that goes to show, as we mentioned earlier, you kind of complicate things when you introduce a new variable, with respects to the Almaraz/Guzman. But at the same time you are saying what has been defined needs to match up with the AMA guides and that is not contentious. It doesn’t exist to create complications, it’s just the fact that Almaraz/Guzman, as you extrapolate it to work comp law, it’s just a thing that doesn’t have the sort of documentation. It isn’t written down somewhere where someone can go and reference it and adequately perform for the claim. Again just pointing out inherent problems in the workers comp system. Now, it’s sort of our goal to take care of these things, so look out for a RateFast blog post clearly outlining Almaraz/Guzman in the most non confusing way possible.
One of the things that I’m thinking about right now is, I wonder if anybody is listening in, that is a physician, that wasn’t aware of Almaraz/Guzman. If they tell you about or not when you’re getting your work comp approval. But if you’re just finding out about this now, spin this one back and give it another listen. Because it’ll help your practice.
So, John, in depositions for RateFast users, how do you handle questions from attorneys regarding RateFast ratings that invoke Almaraz/Guzman?
Dr. John Alchemy: This Almaraz/Guzman comes up with standard ratings, too, and I did a deposition not long ago where the attorney was trying to understand how a whole person impairment skin condition was arrived at and how it was done. And I spent some time going through the basics, saying here’s how we bound things, here’s how we interpreted, weight averaging is basically the bread and butter of the AMA guides, it’s cited all over, between the two covers, and here’s how we do it. And the attorney seemed a little perplexed as to how we do it, and how this whole thing works. The attorney was able to grasp, and even understand and agree with the basic tenants that I outlined. You lay it out all nicely for them. And at the end of the day there’s still this inquisitional look over at me, like, why are you using RateFast?
Cory: Well first off, because I made it! Is what you could say.
Dr. John Alchemy: Well that’s the reason it was created. Because these ratings are complicated, numerically. And the answer I always give the attorney is when was the last time you balanced your checkbook manually? When was the last time? For me, the last time was probably 1993. That was the last time I sat down and balanced my checkbook. And I’m okay at math, but I would never get my checkbook to balance. It would take me three or four times, and the mistake was always mine. So the bigger question to the attorney in that particular situation is why would we ever depend on a doctor long handing it to try go figure out what someone’s impairment rating is when we have a system that has already done it? That’s why we have computers, and it’s why we have technology.
Cory: Well yeah, and if answer is that things are better done in a traditional sense, there’s nothing that’s being done in a more traditional sense. We live in a time where everything is different than it was five years ago. So I’m with you on that. There’s no reason one should be doing something by hand, especially in work comp, every stakeholder is occupied right now and even if the entirety of the system was automated, they would still be occupied. It almost seems like a profession in which every stakeholder is constantly catching up to the last thing that happened. So it’s absolutely necessary to use something such as RateFast as we highly recommend.
Dr. John Alchemy: You know and the bigger question is, why did I choose the inputs that I did for RateFast as opposed to why do I use RateFast? RateFast is a tool to improve accuracy and consistency with ratings. The bigger question is why did you choose a 5/10 pain and why did you say it was frequent and why did you say 7 ADLs were limited and only 4 were pain only? Those are the real questions that belong in the discussion and you just have a tool like RateFast because you want to make sure the outcomes are correct, if the inputs are correct.
So it’s the same old thing, garbage in, garbage out, if you’re looking for garbage in, have discussions about what’s going in, not why we’re using technology to achieve more accuracy and efficiency. I just don’t really think that’s much of a discussion, but some people get confused by it I think.
Cory: Yeah, it’s the attorney that walks to the courthouse instead of taking a car.
Dr. John Alchemy: And in the attorney’s defense, attorneys don’t go home as far as I know, and study the AMA guides. They need help learning those, and the doctors need help understanding the different work comp labor codes. Again, we did a great podcast on depositions not long ago. And again it’s just an opportunity to learn and teach each other and not get too contentious about it.
Cory: Absolutely. John, any final words on Almaraz/Guzman?
Dr. John Alchemy: Well, I’ll just recap again so we can all hear it again, but the Almaraz/Guzman was set up when the doctor believes that the injured worker has crossed beyond the threshold of what the AMA guides have provided the individual and when that happens the doctor has to first simply give the “four corners” rating whether that be 0 or some other number and then they have to give an alternative rating. Then they have to go on and explain why that alternative rating is a, valid and b, reasonable to fit the injured worker’s functional loss.
And I’ll close, and I try to say this in podcasts as much as I can, impairment rating is all about functional loss, and a whole person impairment is nothing more than a reflection and an accurate reflection of the functional loss. Those two things don’t always line up for whatever reason. Then you’re looking at this situation of the Almaraz/Guzman, but in the AMA guides it’s already understood that this comes up, so it’s already been thought up and put out there by the AMA guides. Unfortunately there hasn’t been a very good standardized system. And at the end I’ll give a pitch saying RateFast has made a very good attempt at standardizing function ratings to compare to the “four corners” and it’s just a standard part of every single rating we do. It’s just the bread and butter of the impairment rating and it’s just business as usual for us to calculate that.
Cory: We do it well, so you don’t have to.
Dr. John Alchemy: Indeed we do.
Cory: Well thanks again, John. And we will have a blog post pretty soon on Almaraz/Guzman, that outlines it really well. Hopefully we can make something that will be a nice companion to doing impairment ratings, and if you’re using this companion and it works out for you and you still find yourself spending a lot of time on it, and you think your time could be used otherwise, you can always use RateFast.
Thanks again, John. We will talk to you next time.
Dr. John Alchemy: Thanks, Cory.
Cory: For more information on the Almaraz/Guzman decision, as well as how it applies to RateFast and RateFast Express rating services, visit our blog at blog.rate-fast.com. And try RateFast Express today at ratefastexpress.com.