Mya Gibson, Partner and Managing attorney of the San Diego Office, received an excellent result in a case regarding permanent disability and application of the AMA Guides.  The case originally proceeded to Trial and the WCJ found the reports of the QME and PTP to not constitute substantial medical evidence and the WCJ appointed an independent medical examiner (IME).  Following an evaluation of the applicant, the IME assigned 23% whole person impairment (WPI) based Chapter 13, Table 13-15, Class 3 impairment per the AMA Guides, based on his impression that the applicant was unable to walk without assistance. The original IME report rated to 39% permanent disability.  The IME’s opinion was based on the applicant’s statements during his examination about her ability to walk and the physical examination.

Ms. Gibson deposed the IME to clarify his opinion and, at deposition, the doctor admitted that a lower WPI would be indicated if evidence were presented that the applicant was able to walk some distance without the cane.  Surveillance video spanning several days was then submitted to the IME, showing the applicant frequently carrying the cane in her hand or on her arm, but rarely relying on the cane to ambulate, as she did not put weight on it while walking. Following review of the video, the IME reduced the WPI to 15%, which in turn rated to only 26% permanent disability. This was based on Class 2 impairment, which contemplates an individual can walk with some difficulty and without assistance, rather than Class 3 impairment, which suggest the individual cannot walk without assistance.

At Trial, the applicant testified that she almost always carried the cane outside the home, but that it was for “security purposes” and she only uses it when necessary. The applicant admitted to being able to walk at work and in her home without the cane. Despite this testimony and the surveillance video, the WCJ awarded the higher WPI of 23% and stated that the limited video submitted to the IME was not good cause for him to substantially reduce the WPI.

Defendant filed a Petition for Reconsideration, challenging the judge’s findings and her refusal to accept the revised opinion of the IME.  The WCAB agreed that the judge had erred and stated that the judge cannot supplant her opinion about impairment and her opinion must be based on medical evidence.  The WCAB stated even absent the surveillance video, the applicant’s testimony at Trial supported the lower WPI since her testimony was consistent with the lower classification in Chapter 13 and the IME had sufficiently explained why the lower impairment was appropriate.  The original opinion of the IME was based on facts that were no longer germane, and it was an error for the judge to rely on the earlier report. The WCAB amended the Award to reflect PD of 26% ($30,975.50) rather than the 39% ($56,260) awarded by the WCJ at Trial, resulting in savings of over $25,000 for the self-insured employer.

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: