Hearing the pleas of employers, carriers and other defenders of the workers’ comp reforms, the Sixth District Court of Appeal yesterday agreed to review the Workers’ Compensation Appeals Board’s en banc decision in Guzman (Milpitas Unified School District v. WCAB). The case is the first of the three controversial en banc decisions affecting permanent disability awards to be accepted for review by a California court of appeal.

While the court granted the writ of review, it denied the request for a stay of the WCAB’s decision. That means cases pending before the WCAB are still governed by the board’s September opinion in Almaraz/Guzman II. This leaves employers open to the threat of higher PD awards unless ultimately overturned by the courts.

The court gave the WCAB until March 25 to send it the official record in the case at which time the respondents will be able to file their opposition. The school district will then have an additional 20 days to respond, after which the case will be scheduled for briefing and possibly oral argument if either party requests it.

That Guzman is the first to be accepted for review by a court of appeal seems apropos as the petitioner tried to go directly to the courts as opposed to going back to the WCAB for reconsideration back in the spring. Attorneys for Milpitas filed a petition for writ in March with the Sixth District, but the court did not take it up at that time as the WCAB was reconsidering its decision in the combined Almaraz/Guzman opinion.

The latest Guzman writ, which was successful in getting the court to hear the case, attacked the WCAB’s decision to allow physicians to use any section in the AMA guides to develop a rating on several fronts. “In essence, the majority’s conclusion that the Guides need not be applied as intended represents a startlingly creative analysis that fails to find support in (a) the plain language of section 4660, (b), the Guides, (c) the Legislative history of SB 899, the reform package that redrafted section 4660, and (d) the WCAB’s own prior analyses,” the petition argued. The petitioners also maintained that use of the guides as allowed under the WCAB decision would render the Permanent Disability Rating Schedule useless, and that the decision amounts to an illegal regulation.

Stay tuned for action on the Almaraz and Ogilvie petitions for writ. Almaraz is pending in the Third district Fifth District, while Ogilvie is pending in the First District.

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Filed by Brad Cain in San Francisco