News Note from your Amicus Curiae Committee
By Joseph Capurro, Esq.
Petition for Writ of Review in Environmental Recovery Services and State Compensation Insurance Fund v WCAB (Almaraz) (Case # F058698) Denied by Fifth Appellate District.
Nearly twenty months after the original Petition for Writ of Review was filed in the Court of Appeal, Fifth Appellate District to the Workers’ Compensation Appeals Board landmark decision in Mario Almaraz v Environmental Recovery Services , the Court has summarily denied the petition on June 16, 2011.
The WCAB issued two en banc decisions in Almaraz, and its companion case Guzman which affirmed a party’s right to rebut a scheduled permanent disability rating under the AMA based 2005 Permanent Disability Rating, commonly referred to as Almaraz/Guzman I & II. The Board held that one appropriate approach in establishing rebuttal evidence was to demonstrate that the WPI element of the scheduled rating did not accurately reflect the true extent of an injured worker’s impairment. Defendants in both cases sought review in the appropriate appellate district. Guzman was filed in the Sixth Appellate District which granted the Writ and after accepting briefs and holding oral argument issued a decision on August 19,2010 issued a decision affirming the Board’s decisions. (Milpitas Unified School District v WCAB (Guzman) 75 Cal Comp Cases 837). Defendant’s petition for review by the Supreme Court in Guzman was denied. State Compensation Insurance Fund sought review before the Fifth Appellate District in Almaraz.
With the action pending before the Fifth Appellate District in Almaraz, the question remained as to whether that Court might grant the Writ and issue a decision contrary to the Guzman decision creating a conflict in the law, which would have to be addressed by the California Supreme Court. Additionally, with the action pending, some defendants were still questioning the validity of the WCAB’s en banc decisions. It was in this context that Amicus Committee Chair William A. Herreras wrote to the Court on April 26, 2011 urging the Fifth Appellate District to deny the review and give appropriate consideration to the conclusions of their brethren from the Sixth Appellate District. The Court admitted Mr. Herreras’ letter into the record on May 4, 2011. Thereafter the Order Denying the Petition for Writ of Review was entered June 16, 2011.
While defendant now has ten days to seek a hearing from the California Supreme Court, it seems unlikely such action will be successful in light of the Court’s action in Guzman.
Posted 06-17-2011 2:14 PM by caaaAdmin