The California WCAB, on its own motion, rescinded its prior order in Frazier v. State of California [2013 Cal. Wrk. Comp. P.D. LEXIS 365 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 365 (Lexis Advance)] affirming the WCJ’s findings and award, and returned the matter to the WCJ for new decision on issues of permanent disability and attorney’s fees, when the majority of the WCAB panel held that the Agreed Medical Examiner’s opinion relied upon by the WCJ in awarding 44 percent permanent disability was insufficient as matter of law because the Agreed Medical Examiner impermissibly utilized the AMA Guides Sixth Edition, rather than the Fifth Edition, to determine whole person impairment caused by the applicant/peace officer’s hypertensive heart disease and mild left ventricular hypertrophy.
The WCAB concluded that use of the AMA Guides Sixth Edition is contrary to the mandatory language in Labor Code § 4660(b)(1), stating that impairments “shall” be rated utilizing whole person impairments reflected in the AMA Guides Fifth Edition, that there is no support in any case law suggesting that impairment ratings from the AMA Guides Sixth Edition may be used to rate permanent disability even if the physician believes, as did the Agreed Medical Examiner here, that the AMA Guides Sixth Edition more accurately reflects whole person impairment pursuant to the analysis in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (lexis.com), 74 Cal. Comp. Cases 1084 (Lexis Advance) (Appeals Board en banc opinion) and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837 (lexis.com), 75 Cal. Comp. Cases 837 (Lexis Advance), that Almaraz/Guzman and its progeny clearly indicate that, in rating permanent disability, whole person impairments must come from within the “four corners” of the AMA Guides Fifth Edition, and that the Legislature’s continued intent to utilize impairment ratings in the AMA Guides Fifth Edition to determine permanent disability is demonstrated by the Legislature’s provision for use of the AMA Guides Fifth Edition in statutory amendments and additions enacted under SB 863, notwithstanding prior publication of the AMA Guides Sixth Edition. Read the latest Frazier panel decision.
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