For some time I’ve been expecting that the WCAB would issue a decision clarifying its position on rebutting the 2005 permanent disability rating schedule.
In Scott Boughner vs. CompUSA the WCAB had upheld the validity of the 2005 PD schedule (Boughner’s counsel has requested the Court of Appeal review that decision but there is no action yet on the request for writ of review).
The lesson of the Costa I, Costa II and Costa III cases has been that the WCAB will allow vocational or labor market expert testimony in an attempt to rebut the schedule. But so far, every panel decision I have seen has rejected the substance of the Costa testimony. In some cases the expert’s efforts were not based on substantial evidence. In others the methodology was questioned.
Today the WCAB clarified its position, issuing two en banc decisions,
Wanda Ogilvie vs. City and County of San Francisco, and a separate decision in two cases, Mario Almaraz vs. Environmental Recovery Services and SCIF and Joyce Guzman vs. Milpitas Unified School District and Keenan and Associates.
In tandem, the decisions now provide a “road map” as to the standard for rebutting the AMA guides and the 2005 PDRS.
Note: one or both sides could seek a writ of review with the Court of Appeal. The Court of Appeal has discretion as to whether to hear such a case. Therefore, the following en banc decision are NOT necessarily the last word.
But no doubt about it. These are critical cases for the California workers’ comp system.
Here is a link to a pdf of Ogilvie:
http://www.dir.ca.gov/wcab/EnBancdecisi … ilvieW.pdf
Here’s the pdf of Almaraz and Guzman:
http://www.dir.ca.gov/wcab/EnBancdecisi … uzmanJ.pdf
In my next post I’ll comment on Ogilvie and Almaraz.
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Category: Understanding the CA WC system