Mario Almaraz v. Environmental Recovery Services, State Compensation Insurance Fund
(February 3, 2009)

Joyce Guzman v. Milpitas Unified School District, Permissibly Self-Insured (February 3, 2009)

The Appeals Board held in substance that:  (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state:  “This schedule … shall be prima facie evidence of the percentage of permanent disability….”  The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable.  This decision discusses how the AMA Guides portion of the schedule can be rebutted.

On April 6, 2009, the Appeals Board granted reconsideration of this en banc decision in order to allow further briefing.

Wanda Ogilvie v. City and County of San Francisco, Permissibly Self-Insured (February 3, 2009) 

The Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC)  portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 – including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: “This schedule…shall be prima facie evidence of the percentage of permanent disability….” The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the DFEC portion of the schedule can be rebutted.

On April 6, 2009, the Appeals Board granted reconsideration of this en banc decision in order to allow further briefing.