The Bottom Line on Almaraz/Guzman II and Ogilvie II

Thursday, September 10, 2009 | 0

By Michel LeClerc

The WCAB on Sept. 3, 2009, issued en banc decisions after its reconsideration of the controversial Almaraz
and Ogilvie cases.  In a pair of lengthy decisions, the WCAB has affirmed Ogilvie and limited Almaraz to the four
corners of the AMA Guides.

In Ogilvie I, the WCAB held that the Diminished Future Earnings Capacity (DFEC) modifier in the 2005 rating
schedule is rebuttable.  The WCAB then set forth a formula for rebutting the scheduled DFEC modifier. 

After reviewing numerous attacks on the Ogilvie I analysis, the WCAB in Ogilvie II has now concluded that its original
decision was correct.  However, the WCAB reached a different conclusion in Almaraz.

In Almaraz I, the WCAB held that since the 2005 Permanent Disability Rating Schedule is rebuttable, where a permanent
disability (PD) rating is "inequitable, disproportionate, and not a fair and accurate measure of the employee's
permanent disability" the WCAB could look at medical evidence outside of the AMA Guides for awards of permanent disability. 

On reconsideration, the WCAB has modified its opinion in Almaraz I.  While the WCAB affirmed that the 2005 PD
Schedule is rebuttable, the WCAB can only rebut the Schedule with medical evidence that is based upon the AMA Guides.

Citing Labor Code section 4660(b)(1) mandate that physical impairment be based upon the AMA Guides, the WCAB in
Almaraz II has now rejected the idea that other, non-AMA descriptions of impairment can be evidence of permanent
disability in California workers compensation cases.


The Bottom Line:

Parties to workers' compensation cases can still rely upon the Ogilvie I case to rebut the DFEC modifier.

However, medical-legal evaluators must limit impairment evaluations to the confines of the AMA Guides, and
cannot look to outside sources, descriptions or measurements of impairment.

I anticipate that both cases will go up to the Court of Appeal for further review.  In the meantime, we have already seen a shift in how impairments are rated under the AMA Guides.  This shift is demonstrated in the increase in claims for depression, sleep and sexual disfunction (all subjective conditions) allegedly stemming from industrial injury or as a consequence of industrial treatment.  Employers must demand that medical-legal evaluators provide objective evidence to support diagnosis and impairment in these oft-abused areas.

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Michel LeClerc is a partner in the law firm of Hansen LeClerc LLP in Redding, Calif.
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