Neither You Nor the Appeals Board Got it Right
Wednesday, April 8, 2009 | 0
Editorial Rebuttal
by
Mark Webb
by
Mark Webb
To the publisher:
Respectfully, neither you nor the Appeals Board got it right.
Let’s start with what the Legislature didn’t do. The Courts, including the Board, frequently commence an analysis with the phrase, “If the Legislature had intended to do…” This, of course, is an acceptable part of statutory construction. In reviewing Almaraz/Guzman, however, this maxim should have been applied more uniformly than it was.
If the Legislature had wanted to include the mandated calculation of impairment in the permanent disability rating schedule, then it would have. Subdivision (a) of Section 4660, however, makes no mention of the schedule, but rather only sets forth the various components of what constitutes disability. The statute then goes on to define some, but not all, of these components. For example, the age and occupational factors of disability are not given specific numeric values by the Legislature. How these two factors are to be given numeric value for purposes of a disability award is thus left up to the discretion of the Administrative Director in the development of the permanent disability rating schedule (PDRS). In the case of the diminished future earnings capacity modifier, that discretion is limited to developing empirical data to be used in a formula mandated by the Legislature.
As it relates to impairment, however, the Legislature, under its plenary authority, indeed had something more in mind than providing general guidance to the DWC in the development of a schedule. This clearly distinguishes today’s Section 4660 from its predecessors since the passage of the Boynton Act nearly a century ago. The specific mandatory references to the AMA Guides show a clear legislative intent to make this element of disability determination immune from the actions, or inactions, of the DWC or the WCAB. In other words, there is nothing in the adoption of the PDRS that involves the Guides. Instead, the PDRS is intended to modify the impairment ratings through application of the statutory elements of disability (age, occupation, and diminished future earnings capacity) to arrive at a disability rating.
There is nothing discretionary in paragraph (1) of subdivision (b) of Section 4660. It is a clear and unambiguous declaration that the Legislature intended impairment to be defined by the descriptions and measurements used in the AMA Guides, 5th Edition. The Legislature did not adopt the entirety of the AMA Guides. The Legislature is not presumed to engage in idle acts – yet the Almaraz/Guzman decision stands for the proposition that the Legislature intended to adopt impairment guidelines that, according to the Appeals Board, are themselves self-rebutting. Again, if the Legislature intended the AMA Guides to be nothing more than a plausible starting point for the measurement of impairment then it would have said so. It did not.
In the environment that produced sweeping changes in the workers’ compensation system in 2003 and 2004, is it even plausible the Legislature intended that the entirety of the changes it made to Labor Code Section 4660 could be wiped away by the opinion of an individual doctor and an individual workers’ compensation judge? If that were the Legislature’s intent, why would it have amended Section 4660 at all? Furthermore, how could the expression of intent in Section 4660(d) be only a limitation on the AD in the promulgation of the schedule and not binding on those who seek to rebut it? The presumption created by the PDRS is now a presumption affecting the burden of proof and no longer merely a presumption affecting the burden of producing evidence. The Legislature clearly established that the PDRS was not to undo the consistency, uniformity, and objectivity established by the Guides.
The Almaraz/Guzman decisions also conflate the concepts of impairment and disability. Its long recitation of inapposite case law from other jurisdictions and commentary from the Guides themselves indicate that the Board did not consider that the elements of disability contained in Section 4660 are to be read together with the provisions of the AMA Guides and not independent of them. How could the Board recite language in the Guides distinguishing the impairment rating resulting from the application of the Guides from the measurement of work impairment without correspondingly acknowledging that Section 4660 modifies that impairment by the factors of age, occupation, and diminished future earning capacity to arrive at the very work impairment that the Board claims eludes the entirety of the schedule?
Over the history of the workers’ compensation system, the Industrial Accident Commission and the Division of Workers’ Compensation have not always adopted timely revisions to the PDRS to reflect changes in occupational mix, work related injuries that are not identified in the then applicable version of the schedule or, in the case of the current law, adjustments that would reflect more current aggregate wage loss. The wisdom of the Legislature from the time of Governor Hiram Johnson was to allow workers the opportunity to present evidence to show that the PDRS was incomplete or out of date. It was not to provide alternative theories to compensate the worker from those established by the Legislature.
And what is the new alternative theory? It is rebutting the impairment rating derived from the AMA Guides when the physician and the judge agree that as applied to an individual injured worker the resulting disability award would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability. I do agree that this new standard does not usurp the authority of the AD – but for the reason that the AD could not cite this as authority to develop a PDRS because it is incapable of meeting the requirements of Section 4660(d). It does, however, usurp the plenary power of the Legislature by redefining permanent disability and the clear expression of legislative intent that PD was supposed to be determined through a process that promotes uniformity – an intent that must begin by the uniform application of the Guides to establish impairment and end with the statutory modifiers to that impairment rating to arrive at the amount of permanent disability suffered by the injured worker.
======
Mark Webb is Vice-President, Governmental Relations and Chief Compliance Officer, Employers Direct Insurance Company
======
Comments