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After the Court of Appeals holding in Ogilvie, many of us have been waiting to see what the WCAB would do.

How would the WCAB interpret the 1st DCA’s Ogilvie decision?

In its decision the Court of Appeals rejected the mathematical formula that the WCAB had developed for possible rebuttal of the PD schedule but outlined 3 possible methodologies fro rebuttal of the schedule.

One method? A party could show a factual error in the application of a formula or the preparation of the schedule.

Another method? A party may prove that medical complications of the injury are not captured in the schedule.

But it is the third method that has drawn the most interest. A party may attempt to rebut the PDRS by demonstrating the effect of the injury on the employee’s rehabilitation. In outlining this method, the Court of Appeals noted no meaningful difference between the terms “diminished future earning capacity” and “ability to compete in the open labor market”.

But the Ogilvie court remanded the case back to the WCAB for further development of the record.

Subsequently the Ogilvie case itself was settled, so there was never to be another review of the Ogilvie case by the 1st DCA.

But if the logic of the old California Supreme Court LeBoeuf decision still lives, then would that be applicable only to 100% cases, or also to cases where the worker is less than totally permanently disabled?

A recent WCAB panel decision, Dahl v. Contra Costa County (ADJ1310387) answers that question. The panel of Commissioners Frank Brass, Alfonso Moresi, and Marguerite Sweeney hold that a LeBoeuf type of analysis may be properly applied in a case involving less than 100% permanent disability when it is shown that the injury impairs the employee’s rehabilitation.

Dahl was a case handled by Arjuna Farnsworth, my colleague at Boxer & Gerson.

Dahl’s rating would be 59% if the PDRS was not rebutted, and the WCJ ruled that the rating would be 59%, rejecting any attempt to rebut the rating by using vocational expert testimony if the case was less than 100%. essentially, the WCJ ruled that the attempt to rebut the schedule would fail under Ogilvie unless the worker could show a total loss of earning capacity.

Not so, said the WCAB panel.

What is particularly interesting about the panel decision in Dahl is that they seem to adopt the reasoning expressed by Commissioner Ronnie Caplane in her dissent in the earlier en banc decisions of the Appeals Board in Ogilvie.

The Dahl panel quotes Caplane’s dissent as follows:
“The percentage of her actual loss of future earnings as demonstrated by both parties’ expert witnesses is the most accurate reflection of her diminished future earning capacity. Therefore, her permanent disability rating should be the percentage pure earning capacity of her lost future
earning capacity…..”

“The method that I propose is comprehensive, analytically sound, and operationally simple. It would require vocational or other experts to estimate the injured employee’s post-injury earning capacity based upon medical opinions evaluating her permanent and earning capacity had she not suffered the industrial injury, both to be determined from the permanent and stationary date through her projected years in the work force. Such expert testimony is common in marriage dissolution cases, permanent injury cases, and employment cases.”

One is led to conclude that a solid majority on the WCAB now concludes that vocational expert testimony is a valid methodology to rebut the PDRS, and vocational experts can do this by assessing the percentage of diminished future earning capacity. In essence, the testimony is rebutting the entire PD string, not merely the FEC factor.

What is unclear is what future these concepts will have, as a coalition of forces wish to take this option away from workers.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

Category: Understanding the CA WC system

Julius Young

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