The California Supreme Court has declined to review the 6th District Court of Appeal decision in the Milpitas USD v W.C.A.B. (Guzman) decision rendering that case now final on the issue of a rebuttal to the AMA guideline portion of the AMA guidelines used in describing impairment under the 2005 PDRS. The Court’s action leaves standing the Appellate Decision issued 8/19/10 as binding precedent on affirmative answer to whether and to some extent when, rebuttal of the AMA guides is permissible.
Still pending is the defendant’s appeal in the 2nd prong of the Almaraz Guzman W.C.A.B. en banc decisions in the 5th appellate district. It is unclear if the 5th district was waiting to see what the Supreme Court did with the appeal but briefing in that appeal ended in early June, 2010. That Court has yet to indicate if it will consider defendant’s request for hearing. In order for the issue not to be final with this decision, a contrary opinion will need to be issued from that district. In the event of a contrary decision, the Supreme Court would likely have to step in either by granting a request for review of decertifying the 5th district opinion in order to reconcile the conflict in case law.
There is recent historical precedent for the Supreme Court denying a petition for hearing on an issue and at a later time taking the same issue up and reversing the holding of the first appellate decision. That is exactly what happened in the Brodie/Welcher line of cases addressing calculation of apportionment (the % vs. $ issue). The first appellate decision (Dykes v W.C.A.B.) holding apportionment was based on dollars not percentages was denied review by the Supreme Court but a later split in the appellate courts in different districts required the Supreme Court to address the issue. When it did, the Court’s holding was the reverse of the original appellate decision in Dykes and represents our current state of the law (apportionment based on % of disability).
© Copyright 2010 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.