Featured Faculty

Todd T. Kelly is a partner with the Law Offices of Floyd, Skeren & Kelly, LLP. He represents employers, insurance carriers and third party administrators in all aspects of workers' compensation claims. He is a State Bar Certified Specialist in Workers' Compensation who has authored articles and spoken on behalf of both the Council on Education in Management and the Employer's Advisory Council. Mr. Kelly has acted as a Judge Pro Tem with the Workers' Compensation Appeals Board (WCAB) and serves as a guest speaker for various employers, insurance companies and administrators. He is licensed to practice before all State and Federal Courts in California and is a member of all applicable Bar Associations. Recognized as a lifetime member by Cambridge Who's Who, Mr. Kelly was chosen to 2009 Southern California Super Lawyers. Similarly, he is a Gold Congressional Awardee, is affiliated with the Boy Scouts of America, and is a Paul Harris Fellow with Rotary International.

WC Calculators

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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The WorkCompAcademy is a full featured online learning experience. Our faculty includes the leading practitioners in the California Workers' Compensation Community. Our online curriculum covers all aspects of Workers' Compensation Claims, from basic concepts to advanced topics of value to experienced practitioners such as senior claims exectives, attorneys, and Qualified Medical Evaluators. Students can access classes any time, from any internet connected computer. Courses can be completed at an individualized pace.

WorkCompAcademy Recent California Developments

Judicial Developments
Permanent Disability Apportionent COLA Attorney Fees Voc Rehab UR-SSSOP

Regulatory Developments
Audits ACOEM/MTUS QME Regs CMS/Medicare

  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. 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.

  4. 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.
    • The California Supreme Court agreed on 3/25/2009 to review this case. It is not a good sign when they step in as it is expected that they had some disagreement with what the Sixth Appellate District said. The Suprement Court case number is S169313, and you can view the status of this case on their website. There have been a great deal of amicus briefs filed at this time by parties on both sides.
    • There is some fear that this will make the Supreme Court position in LeBoeuf v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 234 applicable to ratings under the AMA Guides.
    • Thus, an unfavorable outcome will increase opportunities for 100% awards.