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Oral argument was held earlier this week in San Francisco at the California Court of Appeal, 1st District, Division 2, in what is commonly known as the Dahl case, also known as Contra Costa County v. WCAB (Doreen Dahl), A141046.

Dahl is an appeal by Contra Costa County from a WCAB decision upholding a decision by a workers’ comp judge that Ms. Dahl had successfully challenged and rebutted the workers’ comp rating schedule by use of vocational expert testimony as allowed under the Wanda Ogilvie v. WCAB case (2011) (197 Cal. App.4th 1262; 2011 Cal. App. LEXIS 988; 76 CCC 624).

The heart of the legal issues in Dahl involves the following issues: What is the legal standard for rebutting the PD schedule under Ogilvie? What showing must a worker make in order to rebut the schedule? What is the acceptable methodology  to be used by a vocational expert in rebutting the schedule?

The Ogilvie case had outlined three scenarios for rebuttal of the PD rating schedule. Yet, some four years after the Ogilvie decision, there is little if any appellate law following on Ogilvie. Post 1/1/13 injuries come under a different legal standard, but how the PD schedule can be rebutted under Ogilvie remains of great significance to many injured workers (although it should be noted that this rebuttal effort is rarely used in Southern California though used by some of the more skillful Northern California counsel).

Several weeks before the oral argument the Court of Appeal sent a memorandum to counsel advising the following:  At oral argument, the parties should be prepared to address the following: 1. Is there any evidence that Dahl’s industrial injuries prevented her from benefitting, or significantly impaired her ability to benefit, from vocational rehabilitation? If so, what is the evidence and where is it in the record? 2. Is a showing that the employee’s industrial injuries adversely affected her ability to benefit from vocational rehabilitation an essential component of rebutting a scheduled rating under the second method approved in Ogilvie v. Workers’ Compensation Appeals Board (2011) 197 Cal.App.4th 1262? How is the methodology employed by Dahl’s expert, Malmuth, different from that used by the employee’s expert and rejected by the court in Ogilvie? 3. Does the methodology employed by Malmuth to rebut the scheduled rating bear any resemblance to the rebuttal method permitted by LeBoeuf v. Workers’ Compensation Appeals Board (1983) 34 Cal.3d 234? How are they similar or dissimilar? 4. Why is Malmuth’s methodology for determining Dahl’s diminished future earning capacity superior to the methodology prescribed by the Legislature? 5. Should this court address whether rebuttal under the LeBoeuf method reaffirmed in Ogilvie requires a showing that the employee was 100 percent disabled? To raise that issue, was the County required to challenge the first WCAB decision in this case by writ of mandate? What WCAB rule, statute or case law supports your response to this question? 6. Did either the Workers’ Compensation Judge or the Workers’ Compensation Appeal Board make any factual findings regarding Dahl’s ability to benefit from vocational rehabilitation? In the absence of such findings, if we conclude the evidence offered by Dahl was insufficient to rebut the scheduled rating in a manner consistent with Ogilvie, what should our disposition be?”

Judges sitting on the panel were Appellate Justices Therese Stewart, J. Anthony Kline, and James Richman. Richman, who appeared disengaged, asked no questions.

But Stewart and Kline peppered applicant attorneys Arjuna Farnsworth (of Boxer & Gerson, representing Ms. Dahl) and Mark Gearheart (amicus counsel)  and defense counsel Mark Cartier with questions. Most of their concerns were variants of the six questions outlined in the court’s memo to counsel noted above.

Observing at the oral argument was the trial judge, most of the current members of the WCAB , and a handful of prominent workers’ comp attorneys on both sides of the bar.

Based on what I saw, it appears likely that the court will either reverse the WCAB decision in Dahl altogether or perhaps send the matter back to the WCAB for further development of the record. Perhaps the court will delve deeper and change its analysis, but it appeared that defendants will likely get a win from the court.

Furthermore, the court appeared to be leaning toward rejecting the methodology used by the applicant’s vocational expert. Moreover, there was some question as to whether the court will limit the situations under which rebuttal evidence can be used to challenge the otherwise applicable PD scheduled rating. Just how far the court might go on this is unclear.

In particular, Justices Stewart and Kline repeatedly focused on the concept of amenability to vocational rehabilitation. A repeated theme was whether a lack of amenability to rehabilitation was demonstrated in the medical record or the vocational expert record.

Gearheart, arguing on behalf of CAAA, repeatedly noted that the vocational rehabilitation statute had been repealed, yet Stewart and Kline kept coming back to that concept.

Clearly the Justices were well prepared, but it was not clear to this observer whether they really understood the fact that voc rehab no longer exists. Perhaps part of the problem is that the Ogilvie case references the LeBoeuf case which involved a worker who was not amenable to voc rehab. At the time of LeBoeuf, voc rehab still existed.

In the current context, however, it is not clear what amenability to rehab means. Does it encompass the question of whether a worker can return to work at the former job? Undergo successful job placement to a new job? Undertake successful  on the job training elsewhere? Arrange for financing to take courses or programs that will lead to employment? If none of these are offered by or paid by an employer, how does this affect the amenability to rehab concept?

A decision is likely within the next several months. Because much is at stake for many workers, it is likely that any decision in Dahl will appealed.

Here is the WCAB panel decision in Dahl:

WorkersCompDFEC.DahlCase

Here is the Court of Appeals decision in Ogilvie:

OgilvieV.WCAB(2011)

Stay tuned.

Julius Young

www.workerscompzone.com

www.boxerlaw.com

Julius Young

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