Ron Davis, while employed as a laborer by Walt Disney Company,suffered industrial injury while pulling a heavy file cabinet on 1/3/2008 to the cervical spine, with resulting psyche, sleep disorder, sexual dysfunction and GERD. He was provided industrial benefits and treatment. He underwent cervical spine surgery on 3/11/2008 and 5/19/2009. To resolve disputed medical issues the parties obtained AME orthopedic reports of Dr. Roger Sohn, AME psychiatric reports of Dr. Perry Maloff, PQME internal reports of Dr.Revels Cayton. Also placed in evidence at trial were treating physician reports of Dr. Sam Bakshian and Dr.Dan Nairn.
The psychiatric AME, Dr. Maloff, found 8% whole person impairment for the applicant’s psyche, with 90% apportionment to industrial causes. The internal PQME, Dr. Cayton, found that the applicant’s sexual dysfunction was related to his psyche, with no independent ratable impairment. He found 9% whole person impairment for sleep maintenance insomnia, and 6% whole person impairment for GERO.
The orthopedic AME, Dr. Sohn found the applicant had a work restriction limiting him to light work only, precluding repetitive motions of the cervical spine and he should not do overhead work or keep his neck in a fixed position. Also he found 23 %. whole person impairment using the ROM method of the AMA Guides because of the multi-level cervical disc involvement in this case. He also found under DRE Category IV he would have a 26% WP!, plus 3% for chronic pain producing a 28% WP!. The AME explained why he felt this did not-accurately reflect the applicant’s impairment rating and attempted to apply an Almaraz/Guzman rebuttal rating as follows: “However, I do not think this accurately rates the applicant’s impairment rating. Under AMA guidelines, work activities are not taken into account. This accounts only for activities of daily living. I think to get an accurate rating in this person, work activities certainly must be taken into account in this workers’ compensation setting. Not to do so would lead to an obvious inaccurate rating. This is a gentleman who has virtually no extension of his cervical spine. He has 0% extension and only 40% of normal flexion. He has moderate spasm. He has significant diminution in his ability to lift, as well as his ability to move his neck. All-in-all, in my opinion, the applicant has lost 60% of his capacity for function of the cervical spine. Taking into consideration of Figure 15-19, which provides for 80% whole person impairment for complete loss of cervical spine fusion, the applicant’s whole person impairment is best rated, therefore, at 48 % impairment whole person. Adding 3% for his chronic pain level, the applicant’s whole person impairment is thus rated at 50% whole person. This in my opinion, is a more accurate rating under Almaraz/Guzman, and is far more accurate than the above rating using traditional AMA guidelines.”
The WCJ awarded 62% PD, after apportionment based strictly upon the AMA guides. He did not apply the attempted Almaraz./Guzman analysis by the orthopedic AME Dr. Sohn. The applicant’s Petition for Reconsideration was denied in the panel decision of Davis v Walt Disney Company..
The WCJ reasoned that the AME attempts to rebut the Guides by referring to Figure 15-19 of the Guides, attempting to stay within the four comers of the AMA Guides. However, the AME fails to provide sufficient explanation as to why rating applicant’s WPI using Figure 15-19 is more appropriate than the ROM or DRE method for rating the WPI under the spinal chapter, other than to achieve a desired result because he views the AMA Guides as not considering work functions. The AME’s attempt to rebut the AMA Guides whole person impairment rating of the cervical spine factors of disability by reference to Figure 15-19 to produce a 48% WP! cervical spine disability is not substantial evidence. In the instant case, Dr. Sohn did not utilize any other chapter, table; or method in the AMA Guides. Rather, he referenced Figure 15-19. Figure 15-19 is a pictorial diagram of the side view of the spinal column. There is no rating methodology described therein. Figure 15-19 simply states, “the whole spine divided into regions indicating the maximum whole person impairment represented by a total impairment .of one region of the spine. Lumbar 90%, thoracic 40%, cervical 80%.” The figure is provided ONLY for a discussion of Chapter 15.which explains how to convert whole person impairment into regional spine impairment, NOT VICE-VERSA.”