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Almarez/Guzman: Full steam ahead

Yesterday the 6th Appellate District of the California Court of Appeal issued a Writ of Review, denied Defendants’ request for a stay, and indicated that the matter would be set for oral argument. [1]  If you would rather just read what they have to say, here it goes:

Petitioner’s request for a stay is denied. Petitioner’s request for judicial notice, filed on 10/16/09 is denied. The petition for writ of review is granted as follows: Let a writ of review issue ordering the WCAB to certify & return to this court is official record in Guzman v. Milpitas Unified School District & Keenan & Associates, WCAB case No. ADJ3341185 (SJO0254688), not later than 3/25/10. Respondents may file opposition on 3/25/10. Petitioners my reply to the opposition in 20 days after the opposition is filed in this court. The matter will be placed on calendar at a time & place to be specified by court order. Any party desiring oral argument shall so inform this court in writing on 3/25/10 by completing & returning to this court the attached “request for oral argument” form (P, E, WD)

What does this mean for you?  Well, it means at least another four months of Almarez/Guzman II.

The fastest I recall a case going from the granting of a Writ of Review to to Order after oral argument was about four months.  In that case (Rollick) the Court of Appeals had basically already made up their minds about the issues and had allotted each side 10 minutes of argument.  The oral argument in that case took place about four months after the Writ was granted and Order issued almost immediately after argument.  However, the issues presented by Almarez/Guzman II are considerably more intricate.

For more analysis on this decision check out the article on WCExec!

1. Photo courtesy of jjjohn. [↩]

Also not a valid permanent disability rating schedule for 2009

I’ve been getting a lot of questions about the Draft 2009 Permanent Disability Rating Schedule.  There is no 2009 Permanent Disability Rating Schedule. [1]

Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.

Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule.  The biggest change is in the application of the FEC rank adjustment.  Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%.  Additionally, the proposal suggested juggling the various ranks among the body regions.  If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.

Here’s the take-away:

• The 2009 Draft Permanent Disability Rating Schedule was not approved.
• The only official schedule for injuries on or after 1/1/2005 is the current 2005 Permanent Disability Rating Schedule.
• The DEU’s own webpage, updated on 10/2009 as of the date of this posting, doesn’t even offer a link to the 2009 draft schedule.

1. Photo courtesy of wenzday01 [↩]

WCAB gives Ogilvie the green light

Apparently the defense attorney on Bowden v Sunray Termite wrote ex parte to the WCAB requesting the case be declared a significant panel decision. [1]

Commissioner Miller’s letter (download below) notes Bowden was a “purely fact driven case” and “is not to be a statement of legal importance to the community.”  Commissioner Miller further points out Significant Panel decisions are citable panel decisions but not binding legal precedent. [2]

What does this mean to you?

Ogilvie has not been stayed, so sharpen your #2 pencils and work on your math skills.

1. Photo courtesy of adamwilson [↩]
2. Even if the defense attorney’s request had been granted Ogilvie, as an en banc decision, would still take precedence over Bowden. [↩]

This sign is ALSO not a stay on Ogilvie

I’m still getting e-mails suggesting that Bowden v. Sunray Termite is a WCAB Panel decision staying Ogilvie. [1]  Thanks to some loyal readers, I now have a copy of this Panel decision:

1. Photo courtesy of loop_oh [↩]

Just a red herring

In a word, no.  Ogilvie has not been stayed by the WCAB, Court of Appeals, or any other court at this time. [1]

A defense attorney is circulating a letter suggesting that he got the Board to agree on Reconsideration to stay the application of Ogilvie on a case until the Supreme Court decides on the issue.

First, let me preface by saying the Board might theoretically decide to not apply the DFEC rebuttal analysis under Ogilvie for any number of reasons:

• Perhaps the defense vocational expert witness was particularly persuasive
• Perhaps the injured worker was a terrible witness
• Perhaps the Board noted a particularly disproportionate effect of Ogilvie
• Perhaps there were a lot of “motivational” issues for the injured worker
• Perhaps the injury was less than 3 years old

Secondly, even if the Board found a way to decline to apply the DFEC rebuttal analysis under Ogilvie in one circumstance, this does not stay or overrule Ogilvie.  We would need to see something from either the Court of Appeals or another[2] en banc Ogilvie decision from the WCAB.

Thirdly, while I have not seen the documentation to prove it, I have learned the Board declined to apply the DFEC rebuttal analysis under Ogilvie due to some technical issue not having much to do with the actual Ogilvie case.

So, to recap – Ogilvie has not been stayed.  If someone claims otherwise, ignore them until they produce the case.  And when you see it… send me a copy!

1. Photo courtesy of jypsygen [↩]
2. Third!!! [↩]