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David J. DePaolo is the president and CEO of WorkCompCentral.com, a web based subscription newsite that deals with
eveything Workers Compensation in California. David is also an attorney, and has been a member of the California Bar
since 1985. He is a graduate of the Pepperdine University School of Law.
The California WCAB commissioners are the topic of much criticism since Almaraz/Guzman, largely because critics believe
that the case was wrongly decided. Other than applicants' attorneys, I seem to be the only person who publicly will state
that the board got it right.
Critics point to the commissioner's alleged usurping of statutory construction, stating that the code (LC 4660), or at
least its intent, is clear and obvious that permanent disability ratings start with the American Medical Association
guides and must be based on them; that the AMA Guides is fundamental to permanent disability rating.
I see this nowhere in the code.
Let's read 4660 together.
"(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury
or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration
being given to an employee's diminished future earning capacity."
OK - paragraph (a) says that we have to take in to account certain factors. No argument there, right? In fact, this
language existed prior to SB 899.
"(b) (1) For purposes of this section, the 'nature of the physical injury or disfigurement' shall incorporate the
descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the
American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)."
Apparently here is where the disagreement starts. This paragraph makes it clear that the AMA Guides are to be used. To
what degree is less clear, however. The plain reading of this paragraph leads me to interpret it as meaning that there
must be some reference to the AMA Guides, but I don't see where the AMA Guides are the sole determining factor as to
impairment.
Had the legislature intended that the AMA Guides be the sole source of an impairment standard, it could have easily done
so by replacing the word "incorporate" with the word "be". They didn't and that's the first primary clue that the WCAB
picked up on. Had the lawmakers intended that the AMA Guides be the sole source of impairment description then they
could have done so very easily and they didn't.
Round one score in statutory interpretation - WCAB 1, critics 0.
Paragraph (b)(2) deals with the diminished future earnings capacity that will have to wait for my editorial on Ogilvie
except that for the first time in this code section is the word "schedule" used: "The administrative director shall
formulate the adjusted rating schedule based on empirical data and findings from the Evaluation of California's
Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute for Civil Justice,
and upon data from additional empirical studies."
OK, the plain language of this paragraph is that the administrative director shall formulate the schedule based on
empirical data from the RAND report. Interesting the legislature could have also very easily inserted AMA Guides into
this section as well, but they didn't...
Round two score in statutory interpretation - WCAB 2, critics 0.
Paragraph (c) says the schedule shall be amended every five years and that it shall serve as prima facie evidence of the
percentage of permanent disability "to be attributed to each injury covered by the schedule."
Let's talk about statutory construction a bit at this juncture. This paragraph makes it clear that the schedule is only
prima facie evidence, i.e. "at first blush," meaning that the schedule itself may not be the final evidence of
disability if some other evidence has the greater force of persuasion.
This fact has been the subject of a long line of appellate rulings basically holding that if a Workers' Compensation
judge does not like the schedule's assessment of disability, then another disability rating can be substituted (numerous
such case law examples are cited in Almaraz/Guzman). Right here, the argument should end even if the AMA Guides are part
of the schedule, and if the schedule is only prima facie evidence, and if there is better evidence of disability, then,
ergo, the AMA Guides (indeed the entire schedule) is rebutted and may be usurped in favor of some better description of
disability.
But, the critics say, the devil lies in paragraph (d) which states, in part, "The schedule shall promote consistency,
uniformity, and objectivity." The critics say that this is a clear legislative mandate, and that allowing the AMA Guides
to be rebutted violates this mandate.
Hogwash! First, paragraph (d) says nothing of the AMA Guides. It mentions only the "schedule," which as we noted above
is rebuttable in and of itself by the plain language of the statute and long line of case law interpreting this
provision of 4660.
Second, the schedule itself DOES promote consistency, uniformity and objectivity by providing a mathematical framework
upon which to utilize a factor of impairment/disability to accommodate for changes in an injured workers' post-injury
environment. The consistency, uniformity and objectivity lies in the fact that you can input a certain number at the
beginning of the math string and out comes a certain number at the end of the math string every time! That's called
consistency and uniformity. And it's objective, because it is a pure mathematical formula.
Round three score in statutory interpretation - WCAB 3, critics 0.
The board did not say it is doing away with the schedule. The board said the AMA Guide portion of the formula is not
necessarily the be-all, end-all in describing disability. In fact, the board, recognizing the need for uniformity and
consistency, states, "Once the WCAB has made its percentage impairment determination, then that percentage impairment
figure is plugged into the rating formula of the 2005 Schedule, in place of the AMA Guides percentage impairment, but
otherwise the calculation of the permanent disability rating remains the same."
The critics deride the WCAB for "rewriting" the law. They didn't. LC 4660 was properly, and fairly, interpreted. There
is no judicial gerrymandering going on here; it is a plain act of black letter statutory construction and interpretation
that does not require any of the linguistic gymnastics the critic's arguments would require.
The board got it right. Perhaps the legislature could write clear, solid law. Until then, as I have said many times, the
pendulum of workers' compensation swings every seven to 10 years. Looks like the timing is spot on.
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