In a rare break from head "law enforcer" of the Division of Industrial Relations to what could arguably be called "law interpreter," Director John Duncan has apparently decided to take a more pro-active role in dealing with the WCAB Commissioners' interpretations of the law.
[The DIR's press release did point out that, as administrator of the Uninsured Employers Fund and the Subsequent Injuries Fund - as well as the Workers' Compensation Administration Revolving Fund and Ex Officio Member of SCIF - Duncan "has a duty to express his concern regarding possible adverse affects on the funds and programs that he administers."]
So late last week he sent a letter to the Workers' Compensation Appeals Board (with cc's to all attorneys in the affected cases), requesting that Chairman Miller and the Commissioners vacate their opinions in two recent en banc decisions -- Ogilvie and Almaraz/Guzman -- because, as his press release puts it, these decisions
"unduly expand the extent by which the 2005 Permanent Disability Rating Schedule can be rebutted given the express language of legislation that mandates the use of the American Medical Association's Guides and the RAND formula regarding the loss of future earnings capacity."
In his letter Duncan stated "I hereby request that you vacate the decisions on your own motion because, among other reasons, the announced rebuttal criteria discussed in Almaraz and Guzman are unclear and the lack of clarity is having far-reaching, system-wide effects."
While Duncan indicated that none of the funds of which he is the Administrator are parties in the cases, he believes that the UEF and SIF are greatly affected by the decisions.
He pointed out that the Board should consider soliciting argument from a broader range of stakeholders in the workers' compensation system as was done in the past when the board invited amicus briefing in matters of potentially far-reaching effect.
"These decisions already are having substantial impact both on the administration of the workers' compensation adjudication system and on the level of workers' compensation benefits due injured workers.
"Recently, for example, the Workers' Compensation Insurance Rating Bureau announced a large mid-term proposed premium rate increase, of which 5.8% was directly attributed to the Board decisions."
[*In the Almaraz and Guzman cases, the Board held that the AMA guides portion of the 2005 Schedule is rebuttable by showing that the permanent disability (PD) rating would be inequitable, thus allowing physicians to use alternative methodologies for describing an injured worker's impairment.
In the Ogilvie case, the Board ruled that an injured worker can rebut the Diminished Future Earnings Capacity (FEC) adjustment factor of the 2005 Schedule by applying facts about their own specific wage loss to the existing range of FEC adjustment factors set forth in the Schedule.]
To read Director Duncan's complete letter,
→
CLICK HERE.
