In September 2009, the Workers’ Compensation Appeals Board (WCAB) issued another opinion in the combined cases of Almaraz v. EnviroServe and State Compensation Insurance Fund and Guzman v. Milpitas Unified School District and Keenan & Associates (Almaraz and Guzman). The opinion clarifies a prior opinion issued February 3, 2009, and holds: (1) the permanent disability rating resulting from the application of the Schedule is rebuttable; (2) the party disputing a scheduled permanent disability rating has the burden of rebutting it; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one or more of the component elements of the rating, such as the “whole person impairment” (WPI) under the AMA Guides. The September opinion also holds that all WPI evidence must be “within the four corners of the AMA Guides,” although a physician may utilize any chapter, table, or method in the Guides to assess WPI, provided that his or her opinion constitutes substantial evidence.
The February decision had previously held that an impairment rating could be rebutted whenever it would result in a permanent disability award that would be “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.” After a strong response from the workers’ compensation community, the WCAB reconsidered the appropriateness of such a subjective standard and issued this clarifying opinion in September. Summaries of amicus curiae briefs filed with the WCAB can be found here.