Jenna’s Library Almaraz / Guzman II
The 5th District Court of Appeals denied State Fund’s Petition for Writ of Review on 6/16/11. State Fund filed a Petition for Review with the Supreme Court on 6/28/11. The Supreme Court denied State Fund’s Petition for Review in August 2011.
Almaraz/Guzman II– 9/3/09; en banc decision after reconsideration
Almaraz v. Environmental Recovery Services, (ADJ1078163)
& Guzman v. Milpitas Unified School District, psi (ADJ3341185) – 9/3/09
On 2/27/09 SCIF filed a Petition for Reconsideration in the Almaraz case. The WCAB granted recon ofAlmaraz. On the WCAB’s own motion, the WCAB granted reconsideration of Guzman.
The WCAB clarified their previous opinion of 2/3/09.
- The schedule shall be prima facie evidence of the percentage of disability to be attributed to each injury covered by the schedule, but it is rebuttable evidence.
- The burden of rebutting the schedule rests with the party disputing the rating.
- One method of rebutting the scheduled PD rating is to successfully challenge one of the component elements of the rating, such as the WPI under the AMA Guides.
- The physician is not permitted to go outside the 4 corners of the AMA Guides; however, the physician may use any chapter, table, or method in the AMA Guides that most accurately reflects the injured worker’s impairment. The WCAB rejected the “inequitable, disproportionate, and not a fair and accurate measure of the PD” as a standard that it previously used in the 2/3/09 decision.
The WCAB emphasized that the physician cannot use any chapter, table, or method simply to achieve a desired result. The physician’s opinion must constitute substantial evidence.
Defendants argued that the alternative ratings were inconsistent with LC§4660(d) that required the Schedule to promote consistency, uniformity, & objectivity. The defendants also argued that the 2/3/09 opinion was contrary to the goal of the urgency statute that was intended to provide relief to the state from the effects of the current workers’ compensation system. These arguments caused the WCAB to modify the 2/3/09 opinion with a compromise requiring physicians to stay within the AMA Guides.
The WCAB also decided to stop looking at the out of state cases because other states do not apply LC§ 4660 and incorporate the WPI under the AMA Guides and the DFEC.