Stephen L. Kline,
Esq.
steve@adjustingworld.com
Within the last thirty days, the WCAB Commissioners have reviewed and revised their seismic decision of last February with two opinions, en banc: Almaraz – Guzman II and Ogilve II. The tremors from this new aftershock are still being felt as the entire workers’ compensation community is still assessing the damages.
To make some sense of the drama, let’s start with the easy part. All four decisions are clear with respect to two foundational points. The first is that because of the WCAB’s opinion that the language in the statute states that the Permanent Disability Schedule is prima facie evidence and that is unambiguous, this means that the schedule is rebuttable.
The second foundational point is that the burden to rebut the schedule falls upon the person who is challenging the schedule. While there are strong and valid arguments to both of these points, at least at the level of the WCAB commissioners and determinative at the trial level, these points are without question, until an opinion from the Court of Appeal or the Supreme Court instructs otherwise.
So how does one successfully rebut the schedule?
In the first Almaraz – Guzman opinion, the commissioners created a standard which indicated that the permanent disability schedule could be rebutted if it was shown with substantial evidence that the permanent disability rating was “inequitable, disproportionate and not a fair and accurate measure of the employee’s permanent disability”. For the last six months, havoc has broken out at the boards trying to figure out what that means and how to apply it. Multiple supplemental reports have issued and the community has muddled its way through this equitable standard.
In the recent and now controlling opinion, the commissioners categorically rejected that standard. In its place, they held that one of the methods for rebutting the schedule was for a party to challenge one or more of the individual components to the rating formula which comprise the permanent disability rating scheme. A rating has five different components: Injury, Whole Person Impairment (WPI), Diminished Future Earning Capacity (DFEC) adjustment, Occupation Code, & Age variable.
With respect to an injured worker’s WPI, the commissioners concluded that only the AMA Guidelines could be used to assess that component. The determination of the WPI by the evaluating physician must come from within the four corners of that book and be supported by substantial medical evidence. A physician issuing a report on the injured worker’s permanent and stationary status and assessing his/hers WPI can not go outside the AMA Guidelines. The Guidelines become both a blessing and a curse. Many doctors are teaching others as to how to use the Guidelines to maximize the rating by looking into every nook and cranny of the Guidelines.
Other questions arise as to whether a reporting physician should first do a strict analysis under the AMA guidelines or incorporate that analysis into her/his initial report or issue a supplemental report which provides the rebuttable evidence. However, if one does not know what the strict analysis would yield as far as a WPI, is there really anything to rebut? The commissioners may have inadvertently enhanced the business model for PQMEs and AMEs. So much for cost containment.
The Ogilve case provides the methodology for rebutting the component known as DFEC. From the beginning of the 2005 Revised Schedule, this component has been one of the most contentious points of the reform. Applicant attorneys have sought to retrain unemployed vocational rehabilitation experts, who lost their opportunities with the elimination and repeal of vocational rehabilitation benefits. Overnight, many of these experts became economic aficionados who could allegedly accurately predict the diminished future earning capacity of any injured worker.
In contrast, Ogilve II sets out clear instructions as to how the schedule may be rebutted with respect to the DFEC adjustment. They stated, “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 DFEC adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee’s DFEC. However, any individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director (AD) in the 2005 Schedule.” This language should mean there is not to be any rogue analysis which does not follow the formula and methodology used by the AD in setting out the Schedule’s DFEC adjustment factor. You can rebut the schedule in a like and similar manner as it was created. Time will tell whether that limitation inhibits the creativity for challenging the DFEC adjustment factor.
We still have an open question as to whether each and every case will demand that an Ogilve analysis be undertaken. The cost factor involved with this analysis will certainly add to the expense of the overall claim and may be used as leverage for higher settlements on questionable cases. Mischief makers have not been stopped by either of these decisions.
There are still many arguments from the defense standpoint that Ogilve II does not meet the statutory language and requirements as provided by the legislature. This battle probably will continue at the Court of Appeal or higher level.
As was said in the final scene of “Animal House” by Kevin Bacon: “Be calm, be calm, all is well, all is well!”
Thanks for your attention.
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