If you can use duct tape, you can perform an Ogilvie DFEC analysis in 5 minutes

An Ogilvie / DFEC analysis isn’t really difficult, especially when this website has a free Ogilvie / DFEC calculator.[1] The problem comes when you have to prove all the math behind those calculations.  This involves “showing your work.”

The best way to “show your work” is to take the reader through each step of the Ogilvie analysis.  I’ve prepared a sample report (generated using a new service on this website) which provides a clear and easy to understand format for “showing your work.”

The steps are basically this:

• Step 0:  2005 PDRS rating string
• Step 1: Post-Injury Earnings of Applicant
• Step 2: Post-Injury Earnings of Similarly Situated Employees
• Step 3: Calculate Proportional Earnings Loss
• Step 4: Calculate Individualized Rating to Loss Ratio
• Step 5: Compare Individualized Rating to Loss Ratio to range of ratios for the FEC ranks

For those interested, here’s a more detailed explanation of each step in an Ogilvie / DFEC analysis.

When each step of the Ogilvie / DFEC analysis is stated clearly, the reader can see every assumption, step, and perform their own calculations to verify your conclusions.  As long as the parties agree on the numbers used in an Ogilvie / DFEC calculation, they should always arrive at the same result.

Setting forth every single step of your Ogilvie / DFEC analysis lets you to spend less time arguing about the impact of Ogilvie and more time trying to get the case settled.

1. Photo courtesy of indigotimbre

Back to the drawing board

DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!

A little while ago William S. Morris, an Applicant’s attorney, told me that the Ogilvie adjustment calculation could be further simplified. [1] He suggested the following[2] :

1. Earnings Loss[3][4]
   1. L = (PIESSE – PIEA) / PIESSE
2. Individualized Proportional Earnings Loss
   1. = (WPI / L) / 100
3. DFEC Adjustment Factor
   1. = ([1.81/a] * .1) + 1
   2. = ( (1.81 * .1)/a) + 1
   3. = (.181/a) + 1
   4. = 1 + (.181/a)
4. Ogilvie DFEC Adjusted Rating
   1. = WPI * DFEC Adjustment Factor
   2. = WPI * (1 + (.181/a) )
   3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
   4. = WPI * (1 + (.181 / ( (WPI / L) / 100) ) )
   5. = WPI * (1 + (18.1 / ( (WPI / L)  ) )
   6. = WPI * (1 + (18.1 * (L/WPI) ) )
   7. = WPI + (18.1 * L)
5. Conclusion
   1. If the injured workers’ individualized proportional earnings loss is outside all of the FEC ranks, you may calculate the Ogilvie adjustment by adding (18.1*Earnings Loss) to the WPI.

The only flaw with the proofs offered by William and myself is that they are too exact.  The WCAB in Ogilvie never sets forth the exact process for performing the Ogilvie adjustment calculation – so the only official method involves rounding to different significant figures at different places.  Thus, a calculation performed in strict accordance with the WCAB in Ogilvie and through one of these mathematical proofs would differ very slightly.

What do you think? Leave a comment or drop me a line.

1. Photo courtesy of Dahveed76
2. I’m paraphrasing here
3. PIESSE = Post Injury Earnings of Similarly Situated Employees
4. PIEA = Post Injury Earnings of Applicant

Ogilvie and Almaraz/Guzman - let's cut to the chase

First off, if you haven’t already downloaded Ogilvie II and Almaraz/Guzman II, do so now!

As I mentioned previously, each of these cases is about 50 pages long, so there is clearly no substitute for reading them for yourself.  However, here’s Ogilvie II and Almaraz/Guzman II in five sentences:[1]

• Ogilvie v. WCAB II:
  • The WCAB ruled the original Ogilvie (I) formula is still valid.
  • The WCAB appears to have created a right to reopen a case for “individualized proportional earnings loss.”
  • Vocational testimony is not an appropriate way to dispute the DFEC portion of the 2005 Permanent Disability Rating Schedule.
  • (Bonus Dissent Summary: The lone dissent by Caplane says that vocational testimony should be considered proper rebuttal to an entire permanent disability rating.)

• Almaraz/Guzman II:
  • The WCAB ruled that a doctor must issue reports within the “four corners” of the AMA Guides 5th Edition to comply with Labor Code Section 4660(c). [2]
  • However, either party may obtain rebuttal evidence in the form of supplemental reports and depositions regarding the use of any other chapter, method, or table within the AMA Guides.
  • (Bonus Dissent Summary:  The dissenting opinion from Brass, Caplane, and Moresi says they would affirm their decision in Almaraz/Guzman I.)

What do these cases mean for the practitioner?

• The WCAB has created a new right to reopen for a higher than expected “individualized proportional earnings loss.”
• The Ogilvie Mathematical Proof of 18 Point Add-Ons still stands.
• I see even more doctor depositions in my future.
• My phone is going to be ringing off the hook tomorrow.

1. Photo courtesy of Scallop Holden
2. Here, the phrase “four corners of the AMA Guides” just means the parties are restricted to the actual text of the AMA Guides and cannot use analogies and evidence from outside the AMA Guides.

Even this guy can do the Ogilvie adjustment calculation in his head

If you’re using my Ogilvie calculator for situations involving a 100% earnings loss, you’re working too hard. [1]

If you have 100% earnings loss and WPI less than 45, the Ogilvie adjustment formula will always result in WPI + 18.

Not to worry.  I can make Ogilvie even easier:

1. FREE Ogilvie Mathematical Proof v0.1.
2. FREE Ogilvie Adjustment Chart v5!

The Ogilvie mathematical proof has been available for several weeks for peer review.  I’ve only received positive feedback.[2]  The above Ogilvie Adjustment Chart has been testing by myself and other workers’ compensation attorneys, but like everything else on this site is provided subject to all legal disclaimers.

Here’s a peek at what they look like:

Ogilvie Mathematical Proof

Ogilvie Adjustment Chart

1. Photo courtesy of lincolnblues
2. An anonymous source from the DWC actually called it “cool”!

I think we can dispense with the caption, just this once...

A defense attorney friend of mine called me up yesterday to say (I’m paraphrasing here), “You jackass.  Thanks to your Ogilvie proof every Applicant’s attorney I know is calling me up, gloating, and asking for 18 points on top of the whole person impairment on every case!  Why the hell did you do that???”[1]   My first thought was of my favorite quote from Swingers.[2] What I actually said was something along the lines of:

• It’s not like CAAA wouldn’t have found out about Ogilvie if it wasn’t for Jay Shergill mentioning it in a blog post.
• Nothing has changed except that now anyone can perform an Ogilvie adjustment calculation in their head.[3]
• Someone was going to prove that Ogilvie adds 18 points to the WPI in virtually all litigated workers’ compensation cases, so it might as well be me.

1. Photo courtesy of giuliomarziale
2. Just for you Ray!
3. And save $129.99 in the process
4. Hell, a permanent irreversible coma is only a WPI of 80.
5. Remember, just add 18 to the WPI!

Always room for guest articles at PDRater!

Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.

Have you got an article on workers’ compensation you’d like to see published?  Drop me a line and let me know.[1]

Thanks Emily!

P.S. For those of who keeping score at home, this is my 200th post!!!  That’s 200 posts in 357 days or roughly a post every 1.7 days.

1. Photo courtesy of Stephen Cummings

The workers compensation law is founded on the concept of exclusive remedy. In exchange the employer is protected from a civil case. The agreement results in liberal construction. The Trier of Fact has always had the latitude to interpret PD when there are gray areas, and can do so in favor of the worker. The traditional concept is that this is a David and Goliath situation and the system should err in favor of the injured workers.

The new En Banc decisions are a recapitulation of this basic tenet of all workers compensation law. We first saw this in Le Bouef, followed by any number of cases where a PD rating is increased by the WCAB. In cases like Espinoza in the late 80′s, literacy was factored out of the PD rating and considered non industrial. This came up again recently in Hertz, but its really old news.

The new En Banc decision has given the applicant’s attorney more encouragement to challenge the rating. There has always been this ability and the challenge is generally successful, if in fact, the worker is far more disabled than rated. Or far less. I recall the excitement when a case law came out in the late 90′s that said the PTP did not always prevail. The judge simply found the D/QME better science, better clinical evidence and more compelling than a poorly conceived PTP report.

The use of the vocational expert in cases where there is a possible injustice has always been an option for the applicant attorney. The defense will need rebuttal evaluations to ensure that these assertions are fairly reviewed by the Trier of Fact. I am pleased to see the issue raised and the heightened interest in the opinions of vocational experts. There are many pitfalls in the practices and methodologies used. Does interest and motivation factor into ability to work? Is possible to identify the “highest and best” earnings and the “lowest and worst?” Certainly a decent vocational expert can take any side of the argument and present a case of very low, or no earnings, or present a case of higher earnings or no loss of earnings. These are hypothetical evaluations, and the factors must be considered carefully.

Recently I evaluated a young man, age 27, who had an injured hand and could no longer deliver furniture. He was earning $16.00 per hour. The applicant’s evaluator determined he had no transferable skills and was able to earn only minimum wage. One year later, the applicant had taken a four week course in phlebotomy and was earning $22.00 per hour, an increase in earning capacity. The software used by vocational experts would never have predicted this outcome. I did however; predict it, as it turned out that the worker had 100 undergraduate units, but no degree. I asserted that with that level of aptitude for learning, he would eventually find his highest and best earning capacity. The evaluation which is limited to D.O.T codes will be open to scrutiny and can be overturned. Only by consideration of all rehabilitation factors is it possible to accurately predict earning capacity.

Appeal (get it?)

Thanks to our friends at AppealsBoardReporter.com, we now have access to 22 amicus briefs filed in the Ogilvie and Almaraz/Guzman cases. [1] In late March 2009 the WCAB granted reconsideration of their recent Ogilvie and Almaraz/Guzman decisions – and invited the submission of amicus briefs.  You can read and download them here:

• 17 Almaraz/Guzman Amicus Briefs
• 5 Ogilvie Amicus Briefs

Who produced them?  Well, Ogilvie amicus briefs were filed by:

• Morrow & Morrow
• International Association of Rehabilitation Professionals
• The Travelers Companies Inc.
• Insurance Commissioner Steve Poizner
• California Workers’ Compensation Institute

The Almaraz/Guzman briefs were filed by:

• California Applicants’ Attorneys Association
• California Chamber of Commerce-CSAC Excess Insurance Authority
• County of Los Angeles
• California Self-Insured Employers Association
• California Society of Industrial Medicine and Surgery
• California Workers’ Compensation Institute
• Department of Industrial Relations Director John Duncan
• Employers Direct Insurance Company
• Phil Walker, Esq.
• Phil Walker, Judicial Notice Request
• Protected Insurance Program for Schools
• Insurance Commissioner Steve Poizner
• Safeway Inc.-The Boeing Co.-Schools Insurance Authority
• San Diego Schools Joint Powers Authority
• International Association of Rehabilitation Professionals
• Morrow & Morrow
• The Travelers Companies Inc.

After reviewing the above list, I have to wonder: Why doesn’t CAAA have an amicus brief for Ogilvie?  Does anyone know?

1. Photo courtesy of Black Glenn.  Terrible pun courtesy of me.

Need more time to think about Ogilvie, Almaraz/Guzman?

Sometimes even the WCAB needs more time to think.[1]

On March 26, 2009, the director of the Department of Industrial Relations, John C. Duncan, issued a letter to the entire Workers’ Compensation Appeals Board asking them to vacate their own decisions and solicit argument and amicus briefs.  Here’s a copy, courtesy of WCExec.com, the Letter from Director of DIR to WCAB re: Ogilvie and Almaraz/Guzman (3/26/2009).

On Monday April 6, 2009 the WCAB issued three Orders Granting Reconsideration and Order Allowing Amicus Briefs (en banc) in Ogilvie and Almaraz/Guzman.  For your review:

• Order Granting Reconsideration and Order Allowing Amicus Briefs on Wanda Ogilvie v. City and County of San Francisco, ADJ1177048, SFO 0487779, (en banc) (4/6/2009)
• Order Granting Reconsideration and Order Allowing Amicus Briefs on Mario Almaraz v. Environmental Recovery Services (a.k.a. ENVIROSERVE) and State Compensation Insurance Fund, ADJ1078163, BAK 0145426 (en banc) (4/6/2009) and Joyce Guzman v. Milpitas Unified School District and Keenan & Associates, ADJ3341185, SJO 0254688 (en banc) (4/6/2009)

What does the Order Granting Reconsideration of Ogilvie and Almaraz/Guzman mean for you?

1. Ogilvie and Almaraz/Guzman are still the law.  Despite Commissioner Aghazarian’s two concurring opinions, the WCAB did not issue a stay of either Ogilvie or Almaraz/Guzman.
2. The WCAB has granted SCIF’s petition for reconsideration in Almaraz, granting reconsideration on their own motion in Guzman, and the parties’ petitions for reconsideration in Ogilvie.  They have granted reconsideration on these cases to, “afford us a sufficient opporutnity to study the issues.”[2]
3. Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.

1. Photo courtesy of radiospike photography
2. Hence, the “The Thinker” reference above…

AMA Guides 5th Ed.

Clearly, Almaraz/Guzman has been a boon to the U.S. Postal Service.  I’ve been receiving Almaraz/Guzman letters from Applicant attorneys on my files ever since the en banc decision came out.  These letters typically fall into one of three categories:

1. Increased demands for settlement
2. Demands for additional discovery per Almaraz/Guzman
3. Letters to the PQME/AME requesting their opinions on impairment outside the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition

I’ve also heard of some doctors completely abandoning the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition, in favor of just analogizing impairment.  This is not what was intended by the en banc panel in WCAB in Almaraz/Guzman.

Here’s what Almaraz/Guzman means for workers’ compensation practitioners:

• It doesn’t mean you ignore the AMA Guidelines 5th Edition
• It doesn’t mean you ignore the 2005 Permanent Disability Rating Schedule
• You don’t apply the 1997 Permanent Disability Rating Schedule
• The evaluator may analogize impairments not addressed by the AMA Guides
• Before a doctor may analogize impairments, they must first assign impairment under the AMA Guides

So, remember:

1. Whether you agree with the AMA Guides or the 2005 PDRS they’re still the law of the land and must be addressed.
2. Whether you agree with Almaraz/Guzman, it’s still good law and must be addressed.
3. Almaraz/Guzman does not absolve a doctor from the responsibility to generate a medical report which addresses the AMA Guides and constitutes substantial medical evidence.

Get your head out of the sand!

UPDATE 9/3/2009:  Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

There are numerous workers’ compensation professionals who are incredibly unhappy with Ogilvie and Almaraz/Guzman.  Vocational experts are unhappy with Ogilvie, and somewhat hopeful with Almaraz/Guzman.  Impairment rating specialists are not happy with Ogilvie or Almaraz/Guzman.  These people may be unhappy with these new cases, but at least they’re starting to adapt.

As Julius Young of WorkCompZone.com just reported, some people are dealing with Almaraz/Guzman by putting on “webinars.”  Phil Walker and Christopher Brigham have each announced “webinars.”  According to Walker’s promotional e-mail, he charges $2,000.00 to appear for a one day seminar – and now he’s giving it away for free.

People will try to convince you that Almaraz/Guzman is not the law or “just” a WCAB decision.  Do not believe these people.  Ogilvie and Almaraz/Guzman are both en banc cases.

En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and workers’ compensation judges. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109, 120, fn. 5]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6 [67 Cal.Comp.Cases 236, 239, fn. 6]; see also Gov. Code, § 11425.60(b).)

Ogilvie and Almaraz/Guzman are binding precedent on judges and the WCAB itself.  Don’t believe the hype and don’t stick your head in the sand. [1] If you argue it is not the law or not binding precedent, you will lose.  Yes, these cases may be appealed and may even be overturned.

I think it likely they will be appealled and highly unlikely they will be overturned.

1. Photo courtesy of blakeimeson

Combined Values Chart for the 2005 PDRS

A few weeks ago I posted about the Multiple Disabilities Table for combining disabilities with injuries prior to 2005.

For injuries after 2005 we must turn to the 2005 Permanent Disability Rating Schedule.  When combining disabilities for injuries after 2005 there are several possible alternatives.  You can:

• Open up your copy of the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition to pages 604 through 606.
• Open up your copy of the 2005 Permanent Disability Rating Schedule to pages 8-1 through 8-4.[1]
• Reverse engineer the combined values formula from the three pages of 4 point font in the Combined Values Chart.[2]
• OR, my personal favorite, take 30 seconds to sign up for free and use the combined values chart calculator whenever you want!

1. In case you’re wondering, the chart on the right is a super-condensed version of the Combined Values Chart on pages 8-2 through 8-4.
2. Honestly, I don’t recommend this.  It wasn’t fun.

So Many Calclators, So Little Time

After some additional testing and feedback, I have launched the Ogilvie Calculator aka DFEC Calculator aka Diminished Future Earning Capacity Calculator.[1]

To all of my friendly beta-testers:  Thank you!

So, what are you waiting for?  Signing up for this website is totally free and takes 30 seconds.  Log in, give it a whirl and let me know what you think.

1. Photo courtesy of teclasorg.

A modern hacker #1

I launched the Ogilvie DFEC Rebuttal Calculator on Saturday morning to a select group of beta-testers. [1] When I upgraded a person’s access to the website they had no problem seeing the workers’ compensation calculator.

Unfortunately, not one of them was able to actually use the thing.  Last night my wife suggests the problem might be, “maybe they are using a different version or its not refreshed or something”?

And you know what?  She was right.  My wife, the hacker.[2]

I’ve written several protections into these calculators to insulate my users from having to deal with problems or bugs from newly installed code.  I would much rather a user sees nothing than get a wrong answer.  And nothing is exactly what my users saw.  I had remembered to allow my beta testers to see the Ogilvie DFEC Rebuttal Calculator – but forgot to give them access to calculator.

So, the beta-test period will continue for another day or two while I await feedback from my users.

If you’d like to see what the Ogilvie DFEC Rebuttal Calculator looks like or want to try to use it, just sign up for free and shoot me an e-mail asking for access.

1. By “select group” I mean anyone who asked me if they could help.
2. Photo courtesy of gutter.

How to build a calculator: It's like smashing a calculator - only in reverse

I’m going to delay the launch of the Ogilvie DFEC rebuttal calculator for a day or two. [1]  I believe it works just fine, but I would like to test it a little more.  This said, I will grant anyone who is interested access to this calculator.

Why the delay?  Well…

The interesting thing about taking apart a set of calculations is that you find all sorts of “hidden steps” to the calculation.  The majority in Ogilvie does a respectible job of going through the steps of this new formula and even gives several examples.

When performing most calculations one will need to round numbers at some point.  However, rounding almost invariably takes place at the very end.  In the case of the Ogilvie calculations, it appears that the WCAB rounds various figures throughout the calculation.

Even though the DFEC rebuttal calculator was giving correct answers, the fourth or fifth decimal places on some intermediary figures occasionally did not coming out right.  It took me a little while to track down all the spots where the WCAB was implicitly rounding their figures (and to what decimal place!).

I am fairly confident the calculator will work without a hitch, but I’m going to test it a little more before I make it available to the public.  If you’re interested in testing this Ogilvie DFEC rebuttal calculator, please drop me a line and let me know.

If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  Seriously, free as in free!

1. Photo courtesy of mhuang

Professor, tell me more of this DFEC rebuttal calculator...

Earlier today I installed an Ogilvie v. City and County of SF DFEC Rebuttal calculator into the free workers’ compensation calculators page on this website. [1][2][3] For the moment it is only available to people who have signed up for this website and asked to be a beta tester.  If all goes well, I’ll flip a switch and make it available to the public on Monday morning.

At the moment it requires four pieces of information:

1. FEC Rank (re: body part in question)
2. Standard disability (re: body part in question)
3. Post-injury earnings for Applicant
4. Post-injury earnings for employees similarly situated to Applicant

Once you add in that information, click “Calculate” and it should crunch through the formula and give you a response.  The WCAB in Ogilvie suggested several possible outcomes to this formula:

• The “Individualized Loss Ratio” for the injured worker is the same or within the range for the current FEC Rank for the affected body part.  In this circumstance, the 2005 DFEC has not been rebutted.
• The “Individualized Loss Ratio” for the injured worker is within the range of one of the other seven FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.
• The “Individualized Loss Ratio” for the injured worker is outside the range of all eight FEC Ranks.  In this circumstance, you could end up with a new FEC Adjustment Factor much higher or lower than any FEC Adjustment Factor associated with the eight FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.

Obviously, there are innumerable factors that go into considerations of whether a Judge (or the WCAB) would find the DFEC portion of the 2005 Permanent Disability Rating Schedule to be rebutted.  This calculation and the information relied upon in performing this calculation cannot be taken as a guarranteed method of rebutting the DFEC portion of the 2005 Permanent Disability Rating Schedule.

If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  That’s right: free as in free.

1. Photo courtesy of Draggin
2. I had this EXACT same calculator as a kid!
3. Why, how did you spend your Friday night?

Need help with a workers' compensation calculator?

I put out the call for help testing my Ogilvie DFEC rebuttal calculator and got a bite! [1] I wrote it two days ago and refined it a little bit last night.[2]

If anyone else is interested in helping test this Ogilvie DFEC rebuttal calculator, please drop me a line and let me know.

The ideal tester is someone who:

1. Has read Ogilvie and understands how to do the Ogilvie DFEC rebuttal calculations
2. Is willing to use the Ogilvie DFEC rebuttal calculator this weekend
3. Is willing to e-mail me with feedback this weekend so I can launch it on Monday to the public

If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.

You heard me, free as in free.

1. Photo courtesy of Joy of the Mundane.
2. Because I’m a total workers’ compensation nerd.

There are two schedules for rating permanent disability (PD) in California workers’ compensation cases. The “old” schedule adopted in 1997 is generally considered to be more generous in assigning levels of disability. In accordance with the 2004 SB 899 legislative reform, the state has established a “new” PD rating schedule effective January 1, 2005. There was considerable dispute as to when the new rating schedule applies.

It is undisputed that the new schedule applies to all injuries occurring on or after January 1, 2005, and it will also apply to those unresolved claims with injury dates before January 1, 2005, unless prior to that date: (1) there existed a comprehensive medical-legal report indicating that PD exists; (2) or there existed a medical report from the treater indicating that PD exists; or (3) the employer was required to provide notice to the worker under Labor Code §4061. Aldi v. Republic Indemnity Co. (WCAB en banc) 71 CCC 783 and Vera v. WCAB (2007) 35 CWCR 233.

The courts have made it clear that the duty to send notice under §4061 arises when the last payment TD benefits is made, not when those benefits commence. Baglione v. AIG (En banc) 72 CCC 444 and Pendergrass v. SCIF (En banc) 72 CCC 456. It does not seem to matter whether the notice was actually sent or not, only when it was required to be sent.

The courts have also clarified that a treating physician’s medical report or note issued prior to January 1, 2005 must in fact state that PD existed before 2005. Costco Wholesale Corp. v. WCAB (Chavez) (2007) 151 Cal. App. 4th 1101, 72 CCC 582. A report that merely contains a conclusion that PD will likely result, without reasoning, is not enough give rise to the old schedule. SCIF v. WCAB (Echeverria) 146 Cal.App. 4th 1311, 72 CCC 33. The mere mention of a condition that could result in PD is insufficient. Trader Joe’s Co. v. WCAB (Evets)(2007) 72 CCC 204. Also, the date that the report issues, rather than the earlier examination date, seems to be controlling. Biller v. WCAB (2006) 71 CCC 513.

The principal remaining controversy involves whether the report in existence prior to 2005 indicating that PD exists, also has to find that the applicant was permanent and stationary (P&S) at that time. Some courts have held that a report must actually indicate the existence of permanent disability at the time of the pre-2005 evaluation, not “at some time” in the future, in order for a pre-2005 injury claim to be rated under the old schedule. The courts have held that the pre-2005 report must not only find factors of PD, but must also indicate that the worker’s condition is at the time of the exam permanent and stationary (P&S) . Zenith Ins. Co. V. WCAB (Azizi) 153 Cal.App.4th 461, 72 CCC 785 and Vera v. WCAB (2007) 35 CWCR 233.

On the other hand, other courts have rejected this P&S requirement, and have held that the statute does not require that the worker’s condition be declared P&S before 2005. They reason that P&S is not necessarily synonymous with PD, and that therefore a P&S finding in the pre-2005 report is not required to trigger application of the old schedule. Genlyte Group, LLC v. WCAB (Zavala) 36 CWCR 1.

This conflict in the courts may have to be resolved by the state Supreme Court, or else through clarifying legislation. If doubt exists as to which schedule applies, ask physician to address permanent disability using both the old and new schedules.