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Oral arguments in the pending appeal of the Workers' Compensation Appeals Board's (WCAB) en banc decision in Ogilvie are likely to be delayed weeks if not months after the defense's lead counsel, Deputy City Attorney Peter Scherr, abruptly resigned his position with the city to accept a position in the private sector with the Law Offices of Joseph Waxman. If that name seems familiar it should, this is the firm representing injured worker Wanda Ogilvie in the case.
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The California Supreme Court declined on Wednesday November 10, 2010 to review the 6th District Court of Appeal's decision in the Milpitas USD v W.C.A.B. (Guzman) decision. This action by the Supreme court renders the decision in Guzman final on the issue of a rebuttal to the AMA guideline portion of the AMA guidelines used in describing impairment under the 2005 Permanent Disability Rating Schedule. Please recall Guzman allows a physician to use any chapter or table in the AMA Guides to determine an injured worker's level of impairment rather than just the chapter related to the injured body part.
Still pending is the defendant’s appeal in the second half of the Almaraz/Guzman W.C.A.B. en banc decisions in the 5th appellate district. It is unclear as to whether or not the 5th was waiting to see what the Supreme Court was going to do before proceding. That Court has not indicated whether or not it will consider defendant’s request for hearing, however briefing ended earlier this year. In order for the issue to be unsettled, a contrary opinion will need to be issued from the 5th district. Should this occur, the Supreme Court would have to reconcile the conflict in case law either by decertifying the 5th's decision or granting a request for review. |
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The First District Court of Appeal has said it will review whether the Workers' Compensation Appeals Board correctly interpreted Labor Code section 4660 when it issued its en banc decisions in the Ogilvie case. The court granted petitions for writ filed by both the defense and applicant and ordered the cases consolidated.
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The 6th DCA has issued their opinion in Milpitas Unified School District v. WCAB and Joyce Guzman. It can be seen as a mixed victory for applicant’s, but a victory none-the-less. Guzman along with its sister case Almaraz v. Environmental Recovery Services and State Compensation Insurance Fund asked the question of if/how parties could rebut the Permanent Disability Rating Schedule and whether physicians are limited to the most appropriate chapter for rating an industrial injury. In other words, does a physician have to look only at the chapter that deals specifically with the body part that has been injured or may he/she look to other chapters to increase the Whole Person Impairment?
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