While the Almaraz/Guzman and Ogilvie decisions remain on appeal before the Fifth and Sixth Appellate Districts, disability raters from the Disability Evaluation Unit (DEU) have begun including calculations pursuant to Mario Almaraz v. Environmental Recovery Services (aka Enviroserve); State Compensation Insurance Fund in Consultative Ratings which are issued for represented applicants. It is unclear at this time whether this practice extends to Summary Ratings with unrepresented applicants or Formal Ratings at the request of a WCJ after trial.
A typical DEU rating pursuant to this method may therefore appear as follows:
RATING PER AMA GUIDES
16 . 04 . 01 . 00 - 6 -  7 - 380J - 12 - 11 FINAL PD
RATING PER ALMARAZ CASE
10% UEI C 10% UEI C 10% UEI = 27% UEI = 16% WPI16 . 04 . 02 . 99 - 16 -  20 - 380H - 25 - 24 FINAL PD
The AMA Guides rating above is based on range of motion for the wrist. The basis for the calculation of the Almaraz rating is not present in the rating itself, however the rater has apparently taken multiple upper extremity impairments from the doctors report consistent with the "four corners of the AMA Guides" determination of Almaraz and combined three 10% Upper Extremity Impairments.
Although we do not have the doctor’s report upon which this was based, and by way of example only, these figures could have been arrived at by including and combining impairments based on intermittent claudication, Class 2, peripheral vascular disease under table 16-17, mild synoval hypertrophy under table 16-19, and mild digital impairment from active ulnar or radial deviation under table 16-20.
Adoption and inclusion of these calculations in any document issued by a department of the State of California appears inconsistent with the provisions of Labor Code §4660(d), mandating consistency, uniformity and objectivity in the application of the permanent disability schedule.
Goldman Magdalin & Krikes opposes the inclusion of this calculation pending a final outcome of the appellate process, and will vigorously defend based on legislative intent in enacting §4660(d).
© Copyright 2010 by Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.
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