June 14, 2010

   Guzman Court Hears B&B Plea for PD Consistency

In oral arguments before the 6th District Court of Appeal, Bradford & Barthel's Don Barthel and Louis Larres urged the justices to return consistency to a PD system rendered chaotic by Almaraz/Guzman. B&B's Writ & Reconsideration Department, led by Louis Larres, successfully sought writ with the 6th DCA in late 2009, thus giving rise to oral arguments this past Thursday.

Mr. Barthel noted that only by applying the AMA Guides "as written" can California effectuate the legislative goal of achieving "consistency, uniformity and objectivity" in the PD system. While acknowledging Labor Code 4660(c) requires that the PD Rating Schedule (PDRS) be "prima facie evidence of the percentage of [PD]," Mr. Barthel insisted this rebuttal language applies only to the PDRS's "end product": permanent disability. It does not mean, as claimed by the WCAB in Almaraz/Guzman, that each "element" of the PDRS (impairment, DFEC, occupation and age) is subject to rebuttal.

The DCA panel, made up of Justices Eliah, Duffy and Premo, peppered counsel for Ms. Guzman, Bruce Sutherland, and Don Barthel with questions that failed to suggest the direction the DCA is leaning. Mr. Sutherland asked, "Why even have the Guides if they are not to be followed?" He argued the Guides are merely a "starting point" and the WCAB's "scholarly, most comprehensive" opinion should be given great deference. Barthel countered, insisting the WCAB-approved misapplication of the Guides would bring an end to the legislatively mandated uniformity, consistency and objectivity.

Mr. Barthel noted some physicians are using hernia tables for back and knee cases. Reminding the justices that 4660(b)(1) defines "nature of the physical injury or disfigurement" as the "descriptions and measurements of physical impairments and the corresponding percentages of impairments" in the AMA Guides, Barthel emphasized the word "corresponding." He observed that the hernia portion of the Guides contains no "descriptions and measurements of physical impairments" that "correspond" to knees or low backs. Rather, the sections of the Guides with impairment percentages "corresponding" with knees and backs are found in the lower extremity and spine chapters. Thus, insisted Mr. Barthel, the Guides does not support the WCAB's holding that a doctor may use "any chapter, table or method" in the Guides.

A defense win in Guzman could have a wide-reaching impact in California. In addition to putting an end to chapter shopping and misapplying the AMA Guides, if the 6th DCA agrees that only the PDRS end product—permanent disability—is subject to rebuttal, the WCAB's holding in Ogilvie I & II [the diminished future earning capacity (DFEC) portion of the PDRS is subject to rebuttal] would be largely undermined.

"Team Guzman" is made up of a dream team of industry titans. Please thank these hard-working individuals for their sophisticated input, skill, experience, and commitment to this appeal. "Team Guzman" includes:

Amir Adil, Bradford & Barthel
Saul Allweiss, Law Ofc Saul Allweiss
Kent Ball, IWC Group
Don Barthel, Bradford & Barthel
Patricia A. Brown, SCIF
Alan Canfield, SCIF
Christopher Chen, SCIF
Douglas Collodel, Sedgwick, Detert, Moran & Arnold
Michael Cunningham, The Zenith
Bill Dietz, Dietz, Gilmor & Associates
Edmund Farrell, Murchison & Cumming
Meredith Fay, Travelers
Erika Frank, Cal Chamber
Amanda Granger, ICW Group
Anne Harrigan, Berkshire Hathaway Homestate Companies
Vanessa Holton, Department of Industrial Relations
Corey Ingber, Landegger, Baron & Lavenant
David Hoppen, ICW Group
Jake Jacobsmeyer, Shaw, Jacobsmeyer, Crain, Claffey & Nix
Ronald Kollitz, Law Ofc Kollitz & Kollitz
Ellen Langille, Finnegan & Marks
Louis Larres, Bradford & Barthel
Michael Marks, Law Office of Saul Allweiss
Susan Marks, Travelers
Michael McClain, California Workers' Compensation Institute
Steve McGinty, Department of Industrial Relations
Sean McNally, Grimmway Farms
Theresa Muir, Southern California Edison
Tim "Chaos vs Consistency" Nelson, The Zenith
Donald Powelson, Hanna & Brophy
Emmanuel Salazar, Farmer Smith & Lane
Peter Scherr, City of San Francisco
David Skaggs, Employers Direct
Sam Sorich, Association of California Insurance Companies
Jason Waller, LA County
Michael Walsh, Sedgwick, Detert, Moran & Arnold
Paul Watford, Munger Tolles & Olson
Mark Webb, Employers Direct
Darren Wong, SCIF
William Zachry, Safeway


News Release by Mark Fletcher
Managing Partner of Bradford & Barthel, LLP