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WCAB Decisions in Almaraz/Guzman II, Ogilvie II

Thursday, September 10, 2009 | 0

By Corey Ingber
 
 The WCAB recently handed down a 51-page, 4-to-3 "split decision" in Almaraz/Guzman II, with the majority of commissioners essentially validating what they did back in February, but with some notable restraints, limiting modifications and even a couple of outright reversals.  To make this decision more easily digestible, here are the key rulings of the majority and then to follow, I will help you to easily compare the extent and scope of these decisions:
 

  • It is the permanent disability resulting from the 2005 Permanent Disability Rating Schedule (PDRS) which is rebuttable
  • The 2005 PDRS incorporates all chapters of the American Medical Association Guides and not just the impairment determinations contained within some of the chapters
  • All four "component elements" of the 2005 PDRS are rebuttable, including all of the AMA Guides
  • Lab C 4660(c), providing the 2005 PDRS is "prima facie evidence of the percentage of permanent disability" means the PDRS is presumably correct; this is a rebuttable presumption, affecting the burden of proof.  The party opposing the PDRS rating must therefore disprove the assumed fact by a preponderance of evidence.
  • The prior standards in Almaraz/Guzman I, for rebutting the 2005 PDRS, by showing that the Guides based rating was unfair, inaccurate, inequitable or disproportionate, is rejected as being too subjective. Instead, the opposing party is required to overcome the presumption affecting the burden of proof by a preponderance of evidence.
  • The new standard for rebuttal appears to be what is the "most accurate reflection" of the permanent disability (PD).
  •  Neither party may go outside or beyond the "four corners" of the AMA Guides in order to rebut the 2005 PDRS.
  •  All rebuttal evidence must therefore come from within the Guides.  But the physician may use his or her clinical judgment in order to come up with a rating, which is based upon the unlimited use of any and all other chapters, tables and methods, so long as the opinion is deemed substantial evidence.
  •  It is suggested the rebuttal effort starts with a cross-examination of a physician, or the use of a supplemental medical report.
A Direct Comparison
 
Almaraz/Guzman  I (Feb. 3, 2009)
 
Almaraz/Guzman II (Sept. 3, 2009)
 
 
The 2005 PDRS is rebuttable

AG-I Yes - but the challenge can occur to the impairment from the Guides which are specifically rebuttable
 
AG-II: It is the permanent disability rating established by the 2005 PDRS, which is rebuttable (p 9). All  four component elements of the 2005 PDRS are rebuttable, (WPI, DFEC, age and occupational adjustments). The entire AMA Guides is part of the 2005  PDRS and not just the impairment assessment chapters
 
The AMA portion of the 2005 PDRS is rebuttable
 
AG-I: Yes ( p 12)
 
AG-II: The AMA Guides are a "component element" of the PD rating, which can be challenged. Under Lab C 4660(c) the 2005 PDRS is "prima facie" evidence; it is therefore a presumption affecting the burden of proof. The party challenging the rating must overcome the rating with a preponderance of the evidence. (p 16)
 
How is rebuttal done?
 
AG-I:  A party rebuts the AMA Guides by presenting  evidence  that the Guides based impairment results in an award of PD which is: Disproportionate, Inaccurate, Unfair or Inequitable. (p 36, 50) (this is a subjective standard not specified in this decision.) A defendant may rebut by showing that the AMA Guides rating should not be followed if it is inequitably high

AG-II: A2- Standard of  rebuttal of; disproportionate, inaccurate, unfair and inequitable is rejected. Rebuttal may occur by either party by challenging one of the "four components" of the PDRS, by showing that another chapter, table or method within the "four corners" of the Guides most accurately reflects the employee's impairment." (p 13)
 
Effect  and Latitude of Physician Judgment
 
AG-I: An evaluating physician. may invoke his or her clinical and professional judgment based on experience, training and skill (p 44)
 
AG-II: Use of physician judgment to give expert opinion on the WPI, using chapter, table or method of assessing which most accurately reflects the injured employees impairment (p 23)
 
Using Alternatives to the Guides? (going outside the Guides)
 
AG-I:  Can go outside the Guides either fully or partially (p 44-45, 50) and use alternative methodologies to rate impairment, if supported by competent medical evidence.
 
AG-II: Except for psychiatric impairments which are outside of the Guides, ("GAF") a party cannot go outside of the AMA Guides. Recognizing that 4660(b)(1) requires the incorporation of impairments found within the Guides in the 2005 PDRS
 
Use of other Chapters/Tables Within the Guides
 
AG-I:  May draw analogies to other chapters, tables or methods of assessing impairment (p 45)
 
AG-II:  May use any chapter, table or method in the Guides that most accurately reflects the injured employee's impairment (pp 2)
 
 
Comment:
 
The three dissenting commissioners are standing on their prior decisions and they unapologetically make no move whatsoever either towards mitigation or modification.  They are resolute.   While the majority opinion reflects a somewhat softer, more conciliatory tone, don't be misled, since the "bottom line" is essentially the same.  When the smoke from the verbiage clears, the overview from the top remains unchanged.
 
By this further en banc decision, the parties cannot go outside of the Guides to rebut the 2005 PDRS rating.  But who has seen anyone come up with anything outside the Guides to date?  So, this part of the decision holds little substantive change.
 
The new standard of rebuttal provides some facially nice restatement of the required burden of proof, which rests with the applicant or the defendant to disprove the use of the rating from the 2005 PDRS.  But I would argue that by removing the function of "inequity, disproportion, inaccuracy and fairness," from their prior decision, they have probably made it easier and less complex for the applicant to try and rebut the PD rating by having the physician "explain" why the "hybrid rating" from using the Guides other chapters and tables, is simply "more reflectively accurate."  Also, by keeping the whole rebuttal effort within the Guides, the WCAB has tried to reconcile the mandate to have "uniformity and consistency" with the continued use of the 2005 PDRS as "prima facie" evidence.
 
Let the door now open to more Almaraz/Guzman challenges, without the rather complicated "rebuttal formula" found in Almaraz/Guzman I.
 
We can now expect to see much more creative "chapter shopping," including the use of "other chapters" in order to factor in the effect of ADL's which actually impact work activities.  Since the Guides do not consider work as an ADL, then the physician is seemingly now unencumbered to try and draw a work restriction (without calling it a work restriction). In other words, by considering the impact of ADL's upon work, the physician can then state that the impairment is not accurate using a specific chapter -that another chapter combined with the impairment will be a better reflection of an accurate PD picture, given the impact of ADL's and work function.

In a subtle way, the majority has actually strengthened their earlier decision by extracting some of the subjectivity.  By declaring that the Guides cannot be rebutted from extrinsic sources, this simply contains the mischief to the Guides, wherefrom the mischief never left anyway.
 
Expect this winter season to be replete with "AMA Guides" training for the physicians and the expected use of impairment assessments, which ignore tables, shun the limits and combine chapters, otherwise intended to be separate.


Ogilvie II:  "DFEC is now alchemy"

 
Filed at the same time as its companion decision in Almaraz/Guzman, this en banc decision is in many ways parallel.  A number of pages in these opinions are identical as these cases share common legal issues, arising from the central question as to whether or not the 2005 PDRS is rebuttable, and if so, how and to what extent? Here the key holdings:
 
The 2005 Permanent Disability Rating Schedule (PDRS) is rebuttable in all of its component elements, including the diminished future earnings capacity (DFEC).
 
  •  Affirming that a PD rating is a function of a combination of factors; An injured employee's percentage of permanent disability does not equate to his or her percentage of DFEC
  • The 2005 PDRS, which incorporates the DFEC component, is presumed valid as it relates to the use of the RAND data in establishing the ranges of ratios of standard ratings to proportional wage losses in Tables A and B
  • The four-step methodology suggested for a DFEC rebuttal in its February opinion is valid and represents a consistent application of the governing statutes
  •  A rebuttal to the DFEC is accomplished by a party showing that the alternative adjustment factor most accurately reflects the injured employee's DFEC
  •  Three years of post injury wage loss is "ordinarily" used but not mandated.  In individual cases, a longer or shorter period would suffice
  •  In cases where there are two years or less of post earning losses as the applicant was TD, the WCAB suggests it may be difficult to assess earning capacity.  In such an instance, the parties could use the Tables for the DFEC and then permit the applicant to re-open the case (within 5 years from DOI) to allege additional PD, based upon further wage loss data and higher individualized DFEC
  • A party shall not be required to offer a DFEC rebuttal by using either statistically valid empirical data or aggregated data, i.e. a large body of numbers, such as the body of studies of injured workers used by RAND.
  • Applicant's contention that a scheduled permanent disability rating is rebutted by a vocational expert's opinion on the injured employee's DFEC percentage by using a formula (lifetime post-injury earning capacity / estimated lifetime pre earning capacity = %) is rejected
  • The party rebutting the schedule (DFEC) has the same burden of overcoming the presumption affecting the burden of proof accorded to the schedule
 
Comment:  This decision creates a multiplier rather than a DFEC adjustment factor.

By far, this decision has much more potential practice implication than does  Almaraz/Guzman.   Here, the applicants simply have to obtain EDD post earning wage data, complete the formula and then contend that if the ratio of rating over proportion earning loss is beyond the Tables, then they should have the greater adjustment, since it would be based on "real situations" and not an applied table.
 
Applicant attorneys won't need vocational experts, since they simply need to do the math, apply the estimated post injury wage loss based upon EDD or other wage data, and they have a major multiplier rather than an adjustment factor.
 
hen CAAA or an outside vendor can gather the statewide wage data for "similarly situated injured workers by injury type" and then place this information on line or through some simple software application, which does the math...well DFEC becomes alchemy.
 
Are we facing petitions to reopen based upon post injury, post award earnings losses, within a five-year period from date of injury?

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Corey A. Ingber has practiced workers' compensation law for nearly three decades and is a partner at the Encino defense firm of Landegger, Baron, Lavenant and Ingber.
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