Ogilvie II, Almaraz/Guzman II – Reader Digest Versions

By Jay Shergill Posted on September 4, 2009 Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Case Law, Ogilvie, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with almaraz, almaraz guzman 2, almaraz guzman ii, almarez, Analogies, Depositions, dissent, Dissenting Opinion, Four Corners, Mathematical Proof, new almaraz guzman, new ogilvie, ogilvie 2, ogilvie ii, Permanent Disability, Rebuttal Evidence, Supplemental Reports, Wcab

Ogilvie and Almaraz/Guzman - lets cut to the chase — 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: ((Photo courtesy of Scallop Holden))

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). ((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.))
- 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.

Ogilvie II, Almaraz/Guzman II – More En Banc Opinions!

By Jay Shergill Posted on September 3, 2009 Posted in Almaraz / Guzman, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Workers Compensation Resources No Comments Tagged with almaraz, almarez, Compensation Appeals Board, Decisions, En Banc, guzman, Wcab

Need a FREE sample Ogilvie analysis brief complete with citations?

The Workers’ Compensation Appeals Board is back with their en banc decisions on Ogilvie and Almaraz/Guzman after reconsideration. ((Photo courtesy of arturodonate)) Download the Ogilvie/Almaraz/Guzman decisions all in one place:

Each of these four is about 50 pages. Read them carefully, there will be a test later.

Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

By Jay Shergill Posted on April 6, 2009 Posted in 1997 PDRS, 2005 PDRS, Almaraz / Guzman, AMA Guides, DFEC Rebuttal, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with aghazarian, almaraz, almarez, amicus, Amicus Brief, C Duncan, caplane, City And County Of San Francisco, commissioner, Compensation Appeals Board, Compensation Insurance Fund, Concurring Opinions, Crazy Stuff, Department Of Industrial Relations, En Banc, Enviroserve, guzman, Interested Party, Keenan, Kesselring, Majority Opinion, Milpitas Unified School District, new cases, order granting reconsideration, Pdrs, rebut 2005, rebut dfec, rebut pdrs, Rebuttal, recon, Sfo, Sjo, State Compensation Insurance, State Compensation Insurance Fund, Wanda, Wcab, wcab en banc

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

Sometimes even the WCAB needs more time to think. ((Photo courtesy of radiospike photography))

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:

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

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.
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.” ((Hence, the “The Thinker” reference above…))
Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.

How has Almaraz/Guzman changed workers’ compensation?

By Jay Shergill Posted on March 23, 2009 Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Workers Compensation Resources No Comments Tagged with 2005, almaraz, almarazguzman, almarez, almarez-guzman, ama 5th, Ama Guide, Ama Guidelines, analogize, Attorneys, Discovery, Doctors, En Banc, Evaluator, guzaman, guzman, impairment ratings, Pdrs, substantial medical evidence, Wcab

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:

Increased demands for settlement
Demands for additional discovery per Almaraz/Guzman
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:

Whether you agree with the AMA Guides or the 2005 PDRS they’re still the law of the land and must be addressed.
Whether you agree with Almaraz/Guzman, it’s still good law and must be addressed.
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.

Don’t Believe The Hype: Almaraz/Guzman is the law!

By Jay Shergill Posted on March 9, 2009 Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Ogilvie, PDRater, Workers Compensation Resources No Comments Tagged with almaraz, almarez, Binding Precedent, Cal Code Regs, Cal Comp, City Of Long Beach, Comp Cases, Compensation Judges, Compensation Professionals, Decisions, En Banc, guzman, Head In The Sand, Hype, Impairment Rating, Phil Walker, Vocational Experts, Workers Compensation

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. ((Photo courtesy of blakeimeson)) 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.

Tag: almarez