WCAB Decisions in Almaraz/Guzman II

Date: September 3, 2009, Volume: 09-6, Issue: 03

On Thursday, September 3, 2009, the WCAB issued its en banc decisions in the long-awaited cases of Almaraz/Guzman ALMARAZ/GUZMAN II: The WCAB has handed down a 51 page 4 to 3 “split decision,” with the majority of Commissioners essentially validating what they did back in February, but with some notable restraints, limiting modifications and even a couple of outright reversals. To make this decision more easily digestible, here are the key rulings of the majority and then to follow, I am giving you a “side by side” (I and II) so you can easily compare the extent and scope of these decisions:

  • It is the permanent disability resulting from the 2005 PDRS which is rebuttable
  • The 2005 PDRS incorporates all chapters of the Guides and not just the impairment determinations contained within some of the chapters
  • All four “component elements” of the 2005 PDRS are rebuttable, including all of the AMA Guidesi
  • Lab C 4660(c), providing the 2005 PDRS is “prima facie evidence of the percentage of permanent disability” means the PDRS is presumably correct; this is a rebuttable presumption, affecting the burden of proof. The party opposing the PDRS rating must therefore disprove the assumed fact by a preponderance of evidence.ii
  • The prior standards in Almaraz/Guzman I, for rebutting the 2005 PDRS, by showing that the Guides based rating was unfair, inaccurate, inequitable or disproportionate, is rejected as being too subjective. Instead, the opposing party is required to overcome the presumption affecting the burden of proof by a preponderance of evidence.
  • The new standard for rebuttal appears to be what is the “most accurate reflection” of the PD.
  • Neither party may go outside or beyond the “four corners” of the AMA Guides in order to rebut the 2005 PDRS.
  • All rebuttal evidence must therefore come from within the Guides. But the physician may use his or her clinical judgment in order to come up with a rating, which is based upon the unlimited use of any and all other chapters, tables and methods, so long as the opinion is deemed substantial evidence.
  • It is suggested the rebuttal effort starts with a cross-examination of a physician, or the use of a supplemental medical report.

COMMENT: The three dissenting Commissioners are standing on their prior decisions and they unapologetically make no move whatsoever either towards mitigation or modification. They are resolute. While the majority opinion reflects a somewhat softer, more conciliatory tone, don’t be misled, since the “bottom line” is essentially the same. When the smoke from the verbiage clears, the overview from the top remains unchanged. By this further en banc decision, the parties cannot go outside of the Guides to rebut the 2005 PDRS rating. But who has seen anyone come up with anything outside the Guides to date? So, this part of the decision holds little substantive change.

The new standard of rebuttal provides some facially nice restatement of the required burden of proof, which rests with the applicant or the defendant to disprove the use of the rating from the 2005 PDRS. But I would argue that by removing the function of “inequity, disproportion, inaccuracy and fairness,” from their prior decision, they have probably made it easier and less complex for the

applicant to try and rebut the PD rating by having the physician “explain” why the “hybrid rating” from using the Guides other chapters and tables, is simply “more reflectively accurate.” Also, by keeping the whole rebuttal effort within the Guides, the WCAB has tried to reconcile the mandate to have “uniformity and consistency” with the continued use of the 2005 PDRS as “prima facie” evidence. Let the door now open to more Almaraz/Guzman challenges, without the rather complicated “rebuttal formula” found in Almaraz/Guzman I. We can now expect to see much more creative “chapter shopping,” including the use of “other chapters” in order to factor in the effect of ADL’s which actually impact work activities. Since the Guides do not consider work as an ADL, then the physician is seemingly now unencumbered to try and draw a work restriction (without calling it a work restriction). In other words, by considering the impact of ADL’s upon work, the physician can then state that the impairment is not accurate using a specific chapter –that another chapter combined with the impairment will be a better reflection of an accurate PD picture, given the impact of ADL’s and work function. In a subtle way, the majority has actually strengthened their earlier decision by extracting some of the subjectivity. By declaring that the Guides cannot be rebutted from extrinsic sources, this simply contains the mischief to the Guides, wherefrom the mischief never left anyway. Expect this winter season to be replete with “AMA Guides” training for the physicians and the expected use of impairment assessments, which ignore tables, shun the limits and combine chapters, otherwise intended to be separate.

i WPI, DFEC adjustment, age and occupational adjustment ii This is a presumption affecting the burden of proof –the stronger, public policy based presumption, requiring the opposing party to carry the burden of showing by a preponderance of evidence, that the party’s PD rating more accurately reflects the true PD. iii There are two types of presumptions; the first I would call the “light presumption,” which is a presumption affecting the burden of producing evidence. The party opposing the presumption simply presents rebuttable evidence and the presumption is rebutted. The second presumption [Ev Code 606] is the “promoting public policy” presumption, affecting the burden of proof. This is a much stronger presumption and therefore requires the opposing party not merely offer rebuttal evidence, but to essentially disprove the assumed fact. The party opposing this presumption therefore must disprove that presumption, rather than simply present opposing evidence. iv This includes generally accepted medical literature, other AMA publications, or publications of other organizations.

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