Last year, the California Supreme Court denied review in Milpitas v. Guzman, and more recently the Court denied review in SCIF v. Almaraz. So Almaraz/Guzman law is now final.
The Almaraz/Guzman issue was whether the Labor Code allowed for deviation from a “strict” application of the descriptions, measurements, and percentages in the AMA Guides for determining impairment. The Court of Appeal in Guzman, now the final statement of law, said yes.
In summary, the Court of Appeal said,
“In order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.”
“That explanation necessarily takes into account the physician’s skill, knowledge, and experience, as well as other considerations unique to the injury at issue.”
“In our view, a physician’s explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources.”
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“The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence.”
“If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician’s opinion will properly be rejected.”
“Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the truer of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment.”
The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician’s exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides.”
COLA Update
The California Supreme Court clarified, in Baker v. WCAB, when the cost of living adjustments (COLA) take place for life pension and permanent total disability awards. The Court said the COLA starts on the January 1 when the injured worker starts receiving the life pension benefits or permanent total disability benefits.
This was a good result for employers; attorneys for injured workers wanted the COLA to start on an earlier date, which would have increased benefits.
The Court explained, “we conclude that, through the operative language of subdivision (c), the Legislature intended that COLA’s be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits, and the date on which partial permanent disability benefits become exhausted in the case of life pension payments.
California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or [email protected].
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MODIFIED DUTY CALCULATOR: http://www.LowerWC.com/transitional-duty-cost-calculator.php
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
