In a 56 page unanimous decision the WCAB explored rebutting the Whole Person Impairment arrived at under the AMA Guides as part of challenging a permanent disability rating.
The WPI is Rebuttable:
The WCAB first determined that the AMA Guides portion of the 2005 PDRS (i.e. the Whole Person Impairment) is rebuttable. In reaching this conclusion the WCAB used 27 pages of its opinion. First it explained that if Labor Code section 4660 still allows the PDRS to be rebutted (see Costa II) and thus the AMA portion is therefore rebuttable. Second, the WCAB explained that the AMA Guides itself does not factor an employee’s ability to work into its impairment assessments. Furthermore the Guides explicitly provide that a physician may use his/her own judgment to modify WPI analyses.
Finally, the WCAB reached out to authority from other states which use the AMA Guides in assessing permanent disability including Arizona, Florida, New Hampshire, Hawaii, New Mexico and South Dakota. [Comment: None of these states have nearly the complexity or quantity of workers' compensation cases or law as California]
How to Rebut a WPI:
After 27 pages of explaining why the WPI is rebuttable, the WCAB spends 11 pages on HOW it was to be rebutted. The WCAB concluded that it is “rebutted by showing that such an impairment rating 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.” Relying on authority used to rebut the old scheduled the WCAB set forth elements to consider:
1. The impairment rating does not accurately reflect the employee's true disability.
2. The impairment rating is inequitable -- so disproportionate to the disability and the objectives of reasonably compensating an injured worker as to be fundamentally unfair and not provide just and fair compensation.
3. The impairment rating is not rationally related to the employee’s permanent disability.
4. The impairment rating is not commensurate with the disability that the employee has suffered.
The WCAB allowed that a defendant may also rebut an Impairment by showing it is inequitably high.
As for how to prove inequity the WCAB proclaimed: “ordinarily, this showing will be accomplished through the opinions of treating or evaluating physicians who, using methodology in addition to and/or independent of the AMA Guides, conclude that the injured employee’s impairment is greater than – or lesser than – the impairment rating call for by the Guides.” The WCAB encouraged physicians to invoke their own judgment based on experience, training and skill. The WCAB also suggested physicians draw analogies to the Guides’ other chapters, tables or methods of assessing impairment. Finally the WCAB suggested physicians consider other generally accepted medical literature or criteria.
The New WPI:
Once the WPI is rebutted the physician is allowed to substitute his or her “best opinion regarding the employee’s percentage of impairment and explain how and why this impairment percentage was determined.” The WCAB spends 3 pages on this.
In explaining how to arrive at the new “impairment” percentage the WCAB issued several cautions.
First, it made clear that the WCAB is the trier of fact as to the appropriate impairment and may make any finding that is supported by substantial evidence when the record is viewed as a whole. Second, the impairment rating is an estimate, not a science. Third, an impairment cannot be based directly or indirectly on the old schedule work restriction standard disabilities.
The Last Step:
Once the new “impairment” number is found by the WCAB, it is simply substituted for the WPI into the new rating schedule and goes through the FEC, occupational and age adjustments to produce a rated permanent disability.
The above is intended as an objective analysis of this opinion. The following is not:
“If you can't write your idea on the back of my calling card, you don't have a clear idea.” ~ David Belasco.
In law school Civil Procedure professors love to tell students that when a court spends more than a few pages deciding an issue of law it is going to change the law. The longer the opinion the less authority there is to support it and the more unreasonable the holding. This case is an excellent example of that point.
The WCAB’s monstrous opinion is mind-numbing. In one step the WCAB has managed to completely eliminate the entire centerpiece of SB 899’s redesign of the California permanent disability rating system. That centerpiece was the AMA Guides itself. The hope of the “reform” was to remove the physician subjectivity from permanent disability determinations. The framers thought they had done this by tying the starting point of a rating to the AMA Guides. They found solace in the fact the guides specifically provided that different examining physicians properly employing the guides on the same patient should obtain approximately the same WPI. They specifically indicated that the new PDRS “shall promote consistency, uniformity and objectivity.” (Lab. Code, § 4660, subd. (d).)
This decision has jettisoned that goal and completely obliterated the Legislature’s primary method to get there. Instead it marks a return to the old schedule system of physician dependent permanent disability (WPI) determinations. Once again physicians on both sides of the aisle are free to say the objective factors of disability do not accurately reflect the injured worker’s real disability and therefore it is necessary to pick a different level of disability.
The result is that two employees, with the same exact injury, treatment and objective findings will now, once again, have vastly different permanent disability determinations. The sole deciding factor will be the physician’s judgment based on his or her “experience, training and skill.” Even worse, we don’t even have a reference guide to try to tie the physician created WPI into.
Ironically, in the Ogilvie case (decided the same day) the WCAB en banc rejected approaches to rebutting the PDRS which relied on “dueling experts.” The WCAB explained that such an approach “would defeat the Legislature’s intention to ‘promote consistency, uniformity, and objectivity’ in permanent disability determinations.” How the WCAB could then promulgate Almarez is incomprehensible.
Welcome to chaos WCAB style.
Filed February 3, 2009.
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