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Thursday, the Sixth District Court of Appeal affirmed Workers' Compensation Appeals Board's decision in the Guzman case in its entirety. This upholds the WCAB case decision which increased workers' comp costs for California employers, reported the Workers' Comp Executive in an email on Thursday.
"We conclude that the language of section 4660 permits reliance on the entire Guides, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case," reported the Workers' Comp Executive quoting the court's ruling.
Further, wrote the court, "The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides. The PDRS has expressly incorporated the entire Guides, thereby allowing impairment in an individual case to be assessed more thoroughly and reliably."
"The ruling moves us further away from the intent of SB 899 and the legislature’s goals for a objective, consistent and predictable system for measuring permanent disability cases," said Jerry Azevedo, of WCAN, the workers compensation coalition of insurers and employers including IBA West.
"The non-partisan legislative analyst concluded that Guzman – along with the companion cases Almaraz – would drive costs for employers and governments up in the form of litigation and benefit costs. A lot of observers expect these cases to find their way to the Supreme Court for final adjudication," he added.
"This is only the first salvo in the ongoing discussion of this issue at the appellate courts," noted legal expert and workers' comp attorney Jake Jacobsmeyer wrote in an email to interested parties on Thursday.
According to Jacobsmeyer, "the Almaraz case, with the identical issue, has yet to be addressed by the 5th District. It is certainly possible with the decision from the 6th district, the 5th may simply agree with the W.C.A.B. and 6th District and decline to hear the case. The court might even deny the writ and issue one of its unpublished opinions providing us with the court’s rational."
"Regardless of the results from that case, this one is sure to go up to the Supreme Court. Once the Petition is filed with the Supreme Court, we should know in 2-3 months if the court will hear the issue. Even a denial is not presumptive of that courts thinking as it may be waiting for the 5th District’s holding. If the 5th District issues an opinion contrary to the 6th, the Supreme Court will have to step in to clarify the result. If granted we are likely to have to wait for 2 years or slightly longer for a final result," concluded Jacobsmeyer.