Last August the WCAB denied reconsideration in the case of Frazier v State of California, and approved a lower a rating of permanent impairment based upon language in the AMA Guides 6th Edition. This case would have opened the door to ratings outside of the AMA Guides 5th Edition for the first time.

Edward Frazier, a peace officer with the Department of Corrections, had a presumptive (L.C. 3212.1 0) industrial heart trouble with diagnosed hypertensive heart disease accompanied by mild left ventricular hypertrophy.

The AME, Dr. Ng, provided an analysis that in his opinion that under the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition,Table 4-2, (Criteria for Rating Permanent Impairment Due To Hypertensive Cardiovascular Disease AMA 5lh edition) would require a finding that he has a 30% Whole Person Impairment. l

However, the AME was of the opinion that this WPI while appropriate is not an accurate representation of the injured worker’s impairment. Doctor Ng referred to the new AMA Guides 6th Edition as a “standard text or recent research data” to support his conclusion that 30%WPI was too high. He concluded the writers of this recent publication decided that the 30% WPI was too high for asymptomatic mild ventricular hypertrophy. The 6th edition he states shows that for a gentleman with the same mild left ventricular hypertrophy an impairment of 23% WPI is recommended. He concludes that the authors of the AMA guides sixth edition have recognized the accuracy problem (in the 5th edition) and reduced the whole person impairment to a rating of 24% for left ventricular hypertrophy. By inference it is his clinical judgment this lower WPI is more accurate.

In conclusion the AME chose 24% as the most accurate description of this injured workers impairment. This percentage was a combination of his consideration of the analysis of the writers of the AMA 6th edition, his clinical judgment as well as his analogizing with the Coumadin paragraph 9.6C of the AMA 5th edition which has a lower impairment for asymptomatic conditions with serious health risks.

The 24% impairment after the formal rating resulted in a permanent partial disability of 44% which was awarded by the WCJ.

The WCAB denied reconsideration in the panel decision of Edward Frazier v State of California, CDCR – Correctional Training Facility

However, the panel seems to have had second thoughts. LexisNexis reports that “on its own motion” the WCAB rescinded its prior order, and returned the Frazier case back to the WCJ for a new decision. The second decision concluded that use of the AMA Guides Sixth Edition is contrary to the mandatory language in Labor Code § 4660(b)(1), stating that impairments “shall” be rated utilizing whole person impairments reflected in the AMA Guides Fifth Edition, that there is no support in any case law suggesting that impairment ratings from the AMA Guides Sixth Edition may be used to rate permanent disability even if the physician believes, as did the Agreed Medical Examiner here, that the AMA Guides Sixth Edition more accurately reflects whole person impairment.