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.