FREE DOWNLOAD: Almaraz II (WCAB en banc issued 9/3/2009)

FREE DOWNLOAD: Almaraz II (WCAB en banc issued 9/3/2009)

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Mario Almaraz v. Environmental Recovery Services (aka Enviroserve); State Compensation Insurance Fund

Joyce Guzman v. Milpitas Unified School District, Permissibly Self-Insured; Keenan & Associates

ADJ1078163 (BAK 0145426) - Marion Almaraz

ADJ3341185 (SJO 0254688) - Joyce Guzman

This decision was filed and served on September 3, 2009.

The holding involves the application or interpretation of Labor Code section 4660(c), which continues to state:  "This schedule … shall be prima facie evidence of the percentage of permanent disability…."  

In a prior decision the Appeals Board held in substance that:  (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides 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; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

The Appeals Board granted reconsideration of the prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted.

In this Decision After Reconsideration the Appeals Board clarifies and modifies the prior decision, holding that: (1) the language of Labor Code section 4660(c), which provides that “the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s whole person impairment (WPI) under the AMA Guides; and (4) when determining an injured employee’s WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee’s impairment.

The Appeals Board stated further that in light of these holdings, it now specifically rejects the “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability” standard set forth in its February 3, 2009 opinion.  

Attachment: http://www.lexisnexis.com/documents/pdf/20090903051112_large.doc