It's not enough to get better from an injury and to return to work. There is an expectation of money, ergo compensation, for an inconvenience of life, which if removed from the workers' compensation context would simply be an annoyance.
An example is a case that is up on appeal which is all about whether plantar fasciitis deserves a permanent disability rating.
According to the US National Library of Medicine (PubMed), plantar fasciitis is inflammation of the thick tissue on the bottom of the foot - the tissue is called the plantar fascia and it connects the heel bone to the toes and creates the arch of the foot.
The condition arises when this tissue is overstretched or overused - the classic "continuous trauma" sort of injury. It is common with long distance running and can be resolved with shoe inserts.
Treatment for the condition is very conservative and prognosis is quite favorable. Treatment can last from several months to 2 years before symptoms get better. Most patients feel better in 9 months. Some people may need surgery to relieve the pain but that is a rare case.
Plantar fasciitis is a common malady. I've had it. You have probably had it. It's no big deal. It causes pain for a short while, pain that is manageable and doesn't ruin your life, and eventually ceases.
But Arthur Cannon wasn't satisfied that his plantar fasciitis wasn't worth any cash even though he returned to work as a police officer (albeit, it is not stated in the opinion when he returned to work - police officers in California get full salary for 52 weeks when claiming disability from a work injury).
The agreed medical evaluator (AME) originally opined that there was no impairment related to Cannon's plantar fasciitis.
The parties asked him to issue supplemental reports after the Almaraz/Guzman II opinion, and the AME determined that Cannon had a 7% whole person impairment, based upon a "rating by analogy" to the gait derangement table in the American Medical Association's Guides to the Evaluation of Permanent Impairment.
Seven percent is worth $4,105.50, with the return to work discount.
The workers' compensation judge (WCJ) rejected the AME's opinion on disability - rightfully so in my jaded, non-sympathetic opinion.
The WCJ said that rating by analogy was inappropriate because the plantar fasciitis was not "complex or extraordinary." The judge based the decision on the following language from Almaraz/Guzman II:
"The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides." [Emphasis mine.]
The Workers' Compensation Appeals Board (WCAB), on reconsideration, reversed the WCJ in a 2 versus 1 split, saying that the WCJ didn't know what he was talking about.
"As argued by applicant here, the language cited by the workers' compensation judge to limit a rating by analogy only to cases with 'complex or extraordinary' medical conditions does not support his interpretation," Commissioner Marguerite Sweeney wrote on behalf of the majority. "Rather than further restrict a physician's expertise, this language should be read to reflect the ability of a physician to rate impairment by analogy, within the four corners of the Guides, where a strict application of the Guides does not accurately reflect the impairment being assessed."
Here's where the WCAB went awry - there isn't any impairment. That's why plantar fasciitis isn't in the Guides. Because it doesn't cause any impairment.
This is essentially acknowledged in the opinion where it is noted that Cannon has pain when he removes his shoe insert or when he pushes on his heel with his finger.
Or, "when he runs for a period of time."
The old physician joke here is appropriate. Patient: Doc, it hurts when I do this. Doctor: Don't do that...
Commissioner Deidra Lowe dissented.
Lowe determined that the evidence showed that Cannon did not sustain a ratable permanent disability. To support this point, she noted that:
- Cannon did not suffer any loss of earning capacity.
- Ramsey found no impairment of the normal use of a member.
- No evidence showed that Cannon suffered a competitive handicap in the open labor market.
- Ramsey did not discuss the condition's impact on Cannon's activities of daily living or suggest that the condition affected them.
"Here, there are absolutely no measurable impairments and no impairments in the ADLs, so there is no justifiable basis for the use of Table 17-5," Lowe reasoned. She concluded that Ramsey was "basically speculating" about the existence of whether there was objective evidence of measurable impairment, which is insufficient to justify a 7% impairment rating.
Moreover, it seems to me that the WCJ and Lowe are reading between the lines in this case - it is acknowledged that Cannon used to run "a lot of races" and half marathons regularly (but of course now he can't because he's disabled...).
Go back to the PubMed article - one is more likely to experience plantar fasciitis when engaging in long distance running. I know there is no apportionment to causation. Fair enough. But Cannon alleges the onset of his plantar fasciitis was from running during a physical fitness test...
I'm calling BS on this claim. I think the WCJ and Commissioner Lowe are too.
The City of Sacramento filed a petition for writ of review with the 3rd District Court of Appeal on Jan. 23, which is still pending.