McClellan & Corren, A Law Corporation, provides defense representation in workers’ compensation and civil litigation matters in San Francisco, the Bay Area, and throughout Northern California. Our defense lawyers stay apprised of the latest developments in workers’ compensation, insurance defense, employment discrimination, and business litigation. We provide the following summaries of recent cases as a resource for our clients and others seeking information about these areas of law. To learn more about our services or to schedule a consultation with one of our defense attorneys, contact McClellan & Corren today.
Almaraz and Guzman
In September 2009, the Workers’ Compensation Appeals Board (WCAB) issued another opinion in the combined cases of Almaraz v. EnviroServe and State Compensation Insurance Fund and Guzman v. Milpitas Unified School District and Keenan & Associates (Almaraz and Guzman). The opinion clarifies a prior opinion issued February 3, 2009, and holds: (1) the permanent disability rating resulting from the application of the Schedule is rebuttable; (2) the party disputing a scheduled permanent disability rating has the burden of rebutting it; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one or more of the component elements of the rating, such as the “whole person impairment” (WPI) under the AMA Guides. The September opinion also holds that all WPI evidence must be “within the four corners of the AMA Guides,” although a physician may utilize any chapter, table, or method in the Guides to assess WPI, provided that his or her opinion constitutes substantial evidence.
The February decision had previously held that an impairment rating could be rebutted whenever it would result in a permanent disability award that would be “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.” After a strong response from the workers’ compensation community, the WCAB reconsidered the appropriateness of such a subjective standard and issued this clarifying opinion in September. Summaries of amicus curiae briefs filed with the WCAB can be found here.
Ogilvie v. City and County of San Francisco
In September 2009, the Workers’ Compensation Appeals Board (WCAB) issued a clarifying opinion in the case of Ogilvie v. City and County of San Francisco (Ogilvie). In the September opinion, the WCAB holds: (1) the language of section 4660(c) unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled rating is on the party disputing that rating; and (3) one method of rebutting a scheduled rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s “diminished future earning capacity” (DFEC) adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee’s DFEC. However, any individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director in the 2005 Schedule. Any evidence presented to support a proposed individualized DFEC adjustment factor must constitute substantial evidence upon which the WCAB
may rely. Even if the rebuttal evidence is legally substantial, the WCAB may still determine that the evidence does not overcome the DFEC adjustment factor component of the scheduled permanent disability rating.
Previously, in a decision issued in February, the WCAB had held: (1) the DFEC portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings, and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent with Labor Code section 4660. Further, the rebuttal approach consists of: (1) obtaining wage data for the injured employee and wage data for similarly situated employees; (2) doing mathematical calculations with that wage data to determine the injured employee’s individualized proportional earnings loss; (3) dividing the employee’s WPI by the proportional earnings loss to obtain a ratio; and (4) seeing if the ratio falls within certain ranges of ratios in Table A of the 2005 Schedule. If it falls within the range, then the DFEC adjustment factor relates back to the Schedule; and if it falls outside the range, additional calculations will determine an individualized DFEC adjustment factor.
After issuing its February decision, the WCAB granted reconsideration to allow further briefing by the parties and to allow amicus curiae briefing from outside interested parties. Summaries of the amicus curiae briefs that were filed with the WCAB can be found here.