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Michael M. Sela is an associate attorney with Floyd Skeren & Kelly's Culver City Office Location. After years of medical practice, Clinical Assistant Professorship at University of California, Los Angeles and teaching at facilities such as Stanford University Medical Center, Mr. Sela now devotes his time exclusively to the practice of law. Mr. Sela joined Floyd, Skeren & Kelly's Culver City Office in 2007. Mr. Sela represents employers, third party administrators, insurance companies and self-insured entities in all aspects of workers' compensation, including 132a discrimination claims, serious and willful misconduct allegations and standard issues arising out of the underlying case in chief. With his years of medical experience, practice, and teaching and as a Fellow of the American Colleges of Surgeons and Gynecologists / Obstetricians, Mr. Sela brings unique first hand medical knowledge to his practice of law. Mr. Sela uses his knowledge and experience in consulting with many of the firm's attorneys on cases involving complex medical issues and depositions of physicians.

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Wanda Ogilvie v. City and County of San Francisco, (2009) 74 Cal. Comp. Cases 248 (February 3, 2009) has established a method by which the DFEC Table contained in the 2005 Schedule for Rating Permanent Disabilities can be rebutted. We have created an online calculator to help you calculate the DFEC in situations that trigger a rebuttal to the DFEC table in the PDRS.

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  1. Permanent Disability-Use of the AMA Guides - Almaraz v Environmental Recovery, SCIF 74 Cal. Comp. Cases 201 - Milpitas v WCAB (Guzman), 74 Cal. Comp. Cases 201. The first en banc decsion occured on February 3, 2009.
    • Unanimous 2/3/2009 En Banc decisions that set for the conditions upon which the AMA Guides, 5th edition can be rebutted and other criteria can be used.
    • It is believed that these two cases opened the floodgates for much higher permanent disability awards under the mandates of SB 899.
    • These cases were so controversial that the WCAB granted reconsideration for a second time and invited the entire community to file amicus briefs.
    • The deadline for all amicus briefs is now passed, and the industry is waiting for a new decision that is due any day now.
    • No matter what the second decision says, it is expected that these cases will be appealed clear to the California Supreme Court.
    • These cases are located in the 4th and 6th Districts of the California Court of Appeal which are comparatively conservative.
    • There is no stay order. Both of these cases are currently California Law and applicable to our current inventory of cases.
    • Applicant's attorneys and QME/AME's can at this time argue that the AMA Guides makes an inadequate estimate of impairment, and substitute a higher value if it can be reasoned.

  2. Bowing to political pressure, on their own motion the WCAB granted reconsideration and issued a second en banc decision on September 3, 2009. Almaraz v Environmental Recovery, SCIF 74 Cal. Comp. Cases xxx - Milpitas v WCAB (Guzman), 74 Cal. Comp. Cases xxx.
    • The WCAB was slightly more conservative. The essence of the holding was:
      1. The language of Labor Code section 4660(c),5 which provides that "the schedule - shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (
      2. The burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating;
      3. One method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's whole person impairment (WPI) under the AMA Guides;6 and
      4. When determining an injured employee's WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment. In light of these holdings, we now specifically reject the "inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability" standard set forth in our February 3, 2009 opinion.
    • "We emphasize that our decision does not permit a physician to utilize any chapter, table, or method in the AMA Guides simply to achieve a desired result, e.g., a WPI that would result in a permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005. A physician's opinion regarding an injured employee's WPI under the Guides must constitute substantial evidence; therefore, the opinion must set forth the facts and reasoning which justify it. Moreover, a physician's WPI opinion that is not based on the AMA Guides does not constitute substantial evidence."

  3. The Sixth District Court of Appeal granted a writ of review in Almaraz v Environmental Recovery, SCIF 74 Cal. Comp. Cases 201 - Milpitas v WCAB (Guzman), 74 Cal. Comp. Cases 201. Oral Argument is scheduled for June 10, 2010 at 9:30 am. The Court of Appeal is located on the tenth floor of the Comerica Bank building at 333 West Santa Clara Street, Suite 1060, San Jose, CA 95113. The court docket can be reviewed online for further details about the disposition of the case.

  4. Permanent Disability - Diminished Future Earning Capacity - Wanda Ogilvie v. City and County of San Francisco, (2009) 74 Cal. Comp. Cases 248 was first decided in the en banc decision which issued on February 3, 2009. The essence of the case was as follows:
    • SB 899 mandated that the DWC include the effects of the Diminished Future Capacity (DFEC) caused by an injury in the formula used to convert a whole person impairment to a permanent disability.
    • The DWC implemented this mandate by inserting Table A on page 1-7 of the PDRS. This Table was prepared using data collected by the Rand Institute.
    • Applicant attorneys have attempted to circumvent Table A, and instead show that the Diminished Future Earning Capacity of a worker is worse than what Table A contemplates by calling vocational experts to testify at hearings on permanent disability.
    • The DWC agreed with the concept that Table A can be rebutted if the applicant shows a greater impact on Diminsihed Future Earning Capacity than what is depicted in Table A page 1-7 of the PRRS when they issued their en banc decision in Ogilvie.
    • Ogilvie provides a complex formula for calculating the DFEC.
    • There was an immediate political reaction to this case, and the WCAB granted reconsideration to revisit their decision at the same time they granted reconsideration in Almaraz/Guzman.
    • There is no stay order. This case is currently California Law and applicable to our current inventory of cases.
    • No matter what the second decision says, it is expected that this case will be appealed clear to the California Supreme Court.
    • This case liberalizes the rating forumula and makes it easier for claimants who do not go back to work in their former occupation to have a higher permanent disability award.
    • We have created an online calculator which will calculate the values consistent with this case. Or, you may download our worksheet and calculate the values by following the instructions provided.
    • Bowing to political pressure, the WCAB granted reconsideration in this case at the same time as they did in Almaraz/Guzman. On September 3, 2009 they issued a second opinion after reconsederation. They did not make any material changes to the position they took on February 3.

  5. Permanent Disability - Criteria for Total Disability - Hertz v WCAB (Aguilar) (2008) 169 CA 4th 232, 73 CCC 1653
    • Aguilar had injuries to his knees, shoulders and wrists which when combined with his inability to read and write English supported a finding by the WCJ at trial that he was permanently totally disabled
    • This was affirmed on reconsideration.
    • Sixth Appellate District reversed the finding of total disability contending that the finding was based in part on pre-existing, nonindustrial factors, that is, Aguilar's inability to read and write in English. This position was supported by LC 4663 which provides that an employer is liable only for the percentage of Aguilar's permanent disability directly caused by his industrial injuries.
    • Here is what happened in the underlying case. Manuel Aguilar sustained specific and cumulative injuries to both of his knees, shoulders and wrists, and to his right ankle while working as an auto washer for Hertz Corporation (Hertz). Due to Aguilar's injuries and his inability to read and write English, the workers' compensation judge (WCJ) found him to be nonfeasible for vocational rehabilitation and thus permanently totally disabled. The employer petitioned for reconsideration and the WCAB affirmed the WCJ's decision and award. Hertz then petitioned the Court of Appeal for review of the Board's decision, contending that an employer should not be liable for permanent total disability benefits when an injured worker's inability to participate in rehabilitation is due, in part, to nonindustrial causes. The Sixth Appellate District reversed the finding of total disability arguing that the finding was based in part on pre-existing, nonindustrial factors, that is, Aguilar's inability to read and write in English. This argument was supported by new apportionment rules contained in LC 4663 which provides that en employer is liable only for the percentage of Aguilar's permanent disability directly caused by his industrial injuries. The inability to read and write in English was not directly caused by the injury, and therefore should not be a basis for the total disability award. The employer argued that this new apportionment language in the Labor Code was an exception to the Supreme Court position in LeBoeuf v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 234. In LeBoeuf, our Supreme Court held that, when there is a finding of no vocational feasibility, that fact should be taken into account in the assessment of the injured employee's permanent disability rating. (LeBoeuf, supra, 34 Cal.3d at p. 243.). In LeBoeuf, the finding of no vocational feasibility was entirely due to the disability directly caused by the employee's industrial injury. (Id. at pp. 237-238.) And, at the relevant time, an injured worker's permanent disability rating took into consideration the injured worker's "diminished ability to compete in an open labor market." The Court of Appeal concluded in Hertz that "...LeBoeuf does not hold that an employee's permanent disability rating must reflect a finding of non-feasibility where the non-feasibility finding is due in part to pre-existing nonindustrial factors or conditions. Regardless, our revised workers' compensation system precludes such a holding."
    • The California Supreme Court (case S169313) agreed in March 2009 to review the 6th DCA published opinion in Hertz v WCAB (Aguilar)(2008) 169 CA 4th 232, 73 CCC 1653. In a surprise development, on May 20, 2010, the Supreme Court decided not to intervene in the case after all and dismissed the Petition for Hearing with only this comment " Review in the above-entitled matter is dismissed. (Cal. Rules of Court, rule 8.528((B).) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.". The published 6th District Court of Appeal decision is now authoritative law quite favorable to the employer.

  6. WCAB Clarifies Role of Disability Evaluation Unit en banc decision in Blackledge v Bank of America
    • Cynthia Blackledge sustained an admitted industrial injury when she slipped while descending a flight of stairs. An AME, David B. Pechman, M.D., issued a report that found the whole person impairment to be 10%. At trial, Dr. Pechman's report was admitted into evidence. Ultimately, the WCJ issued formal rating instructions to the Disability Evaluation Unit (DEU). In issuing these instructions, the WCJ used a "fill in the blanks" template available to WCJs within the Electronic Adjudication Management System (EAMS) which simply referred to the report without identifying any part of the report in particular. Subsequently, the rater issued a formal recommended rating stating that Dr. Pechman's report "rates 0% final PD." At his cross-examination, the rater testified that he received the WCJ's rating instructions but that he "had to exercise some judgment" and, therefore, he "mechanically applied the AMA Guides" to find no ratable permanent disability. The rater disputed how the AME applied the AMA Guides, and claimed that the criteria in serval of the tables was not met.
    • Nonetheless, the ALJ found a 10% permanent disability despite what the rater said, and the employer Petitioned for Reconsideration.
    • The Chairman of the Appeals Board assigned this case to the Appeals Board as a whole for an en banc decision in Blackledge v Bank of America on the respective roles of the evaluating physician, the workers' compensation administrative law judge (WCJ), and the disability evaluation specialist (rater) in determining whole person impairment (WPI) under the AMA Guides. This is the first opportunity for the WCAB to comprehensively review these roles since adoption of S.B. 899.
    • The Appeals Board held that, in the context of determining whole person impairments (WPI) and issuing formal permanent disability rating instructions, the respective roles of the physician, WCJ, and rater are as follows: (1) the physician assesses the injured employee's whole person impairment percentage(s) by a report that sets forth facts and reasoning to support its conclusions and that comports with the AMA Guides and case law; (2) the WCJ frames rating instructions, based on substantial medical evidence, that specifically and fully describe the whole person impairment(s) to be rated; in addition, the instructions may ask the rater to offer an expert opinion on what whole person impairment(s) should or should not be rated; (3) the rater issues a recommended permanent disability rating based solely on the WCJ's formal rating instructions; unless specifically instructed to do so, the rater has no authority to issue a rating based on the rater's own assessment of whether the whole person impairment rating(s) referred to in the instructions are based on substantial evidence or are consistent with the AMA Guides; (4) the WCJ is not bound by the rater's recommended permanent disability rating and may elect to independently rate an employee's permanent disability; however, the WCJ's rating still must be based on substantial evidence; (5) potential AMA Guides rating problems may be minimized by the early and proper use of non-formal ratings; and (6) there must be no ex parte communication between the WCJ and the assigned rater.
    • The WCAB specifically stated "Therefore, a WCJ's rating instructions are required to specify the WPI(s) to be rated. A WCJ may direct a rater to rate the injured employee's permanent disability specifying the WPI percentage to be used for each injured body part or may instruct the rater to utilize the WPI(s) contained in clearly identified portions of a specified report or reports by delineating the date of the report, the author and specific page references." They went on to state "When a WCJ instructs a rater to utilize particular WPI ratings, the WCJ has concluded that all of those WPI ratings are based on substantial medical evidence. Accordingly, when framing formal rating instructions, it is incumbent on the WCJ to carefully review the report(s) or portions of report(s) of the physician(s) upon whom the WCJ intends to rely and determine whether the WPI ratings comport with the AMA Guides, including as interpreted by appellate and en banc decisions." In applying these principles, the WCAB found that the EAMS template did not specifically instruct the rater which WPIs to use for each injured body part or, alternatively, give clear and specific page references from Dr. Pechman's report to the rater.