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California EAMS: Medical Reports as Evidence

September 22, 2011 (5 min read)
Last fall, we issued a blog discussing Rule 8 CCR §10629 which sets forth the perimeters for filing exhibits in EAMS for trial. The rule requires that all parties create and serve a list of the exhibits they plan to offer as evidence at trial, preferably at the mandatory settlement conference (MSC), but no later than the day of trial. Each exhibit on the list should be identified by author, date, and title. In addition, each medical report must be identified as a separate exhibit, such as:
Exhibit “A,” Dr. Zeus’ AME report of 3/17/10
Exhibit “B,” Dr. Zeus’ Supplemental AME report of 7/1/10
Exhibit “C,” Dr. Zeus’ 2nd supplemental AME report of 3/5/11
Exhibit “D,” Dr. Horton’s treating doctor report of 1/23/11

Before the MSC, parties should review all medical reports and LC §4628 and WCAB Reg 8 CCR §10606 to confirm that their medical evidence is compliant and constitutes substantial evidence.
Also, it is essential to confirm that your medical report is consistent with the WCAB’s current legal standard on all issues. Below is a chronology of some of the recent case law dealing with rating permanent disability (PD) under the AMA Guides. It is incumbent upon practitioners to make sure that the legal standard used by the reporting doctor is compliant with the latest case on point.
Several panel decisions have issued recently finding that the doctor’s alternative or rebuttal method for rating PD is not accurate, because the doctor based his conclusion on the legal standard set forth in the original Almaraz/Guzman decision. As set forth below, the WCAB amended its original decision and set forth a revised legal standard in what is commonly referred to as Almaraz/Guzman II. If the parties fail to obtain updated reports after Almaraz/Guzman II, the medical reports may fail to constitute substantial evidence on the PD rebuttal issue. If the date of a probative medical report is out of sync with the following chronology, a supplemental report should be considered, and if needed, it should be served and filed prior to a request for an MSC.
Chronology of Recent Significant PD Rating Cases:
Costa v. Hardy Diagnostic, (Costa I) (2006) 71 CCC 1797; WCAB en banc re rebuttal of 2005 PDRS rating using VR experts.
Costa v. Hardy Diagnostic (Costa II), (2007) 72 CCC 1492; WCAB en banc re rebuttal of 2005 PDRS rating using VR experts. Costa I affirmed.
Almaraz v. Environmental Recovery / Guzman v. Milpitas Unified (Almaraz /Guzman I), (2009) 74 CCC 201; WCAB en banc—rebuttal of strict AMA rating.
Ogilvie v. City and County of SF, (Ogilvie I) (2009) 74 CCC 248; WCAB en banc—rebuttal of DFEC.
Almaraz v. Environmental Recovery / Guzman v. Milpitas Unified (Almaraz II/Guzman II), (2009) 74 CCC 1084; WCAB en banc—rebuttal of strict AMA rating
Ogilvie v. City and County of SF, (Ogilvie II ) (2009) 74 CCC 1127; WCAB en banc—rebuttal of DFEC.
Blackledge v. BofA, (2010) 75 CCC 613 (WCAB en banc) WCAB defined the roles of doctor, WCJ & rater in determining PD.
Milpitas Unified v. WCAB (Guzman III), (2010) 75 CCC 837; 6th DCA affirmed the decision of the WCAB with opinion. (Supreme Court denied writ.)
SCIF v. WCAB (Almaraz III), (2011) 76 CCC 687 (5th DCA writ denied) (Supreme Court denied writ on 8.24.11)
Ogilvie v. WCAB, (2011) 76 CCC 624; 1st DCA opinion issued re rebuttal of the DFEC rating string component, reversing the WCAB en banc of 9.3.09. On 9.7.2011, defense filed a Petition for Review with the California Supreme Court. California Rule 8.512(b) provides:
“(1) The court may order review within 60 days after the last petition for review is filed. Before the 60-day period or any extension expires, the court may order one or more extensions to a date not later than 90 days after the last petition is filed.
(2) If the court does not rule on the petition within the time allowed by (1), the petition is deemed denied.”

This blog has been approved by the California Division of Workers' Compensation.
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