Ogilvie III: 1st Appellate District Opinion filed 7/29/11

The Court of Appeals reversed the WCAB opinion of 9/3/09 noted below, and remanded the case for further proceedings. On 10/26/11 the California Supreme Court rejected the defendant’s appeal. Under the 7/29/11 decision of Ogilvie III, the Appellate Court determined that the WCAB acted in excess of its authority when the WCAB derived its new method for the alternative diminished future earning capacity factor. The Court focused on the issue of whether it is permissible to depart from the scheduled rating on the basis of vocational expert opinion that the employee has a greater loss of FEC than reflected in the scheduled rating. The Court mentioned 3 ways to rebut the schedule:

1. The party trying to rebut the schedule could show a factual error in the application of the formula, such as the wrong body part, wrong occupation, etc. The Court also discussed the point that there may be problems with the assumptions that the RAND study applied, and the Court alluded to the lack of a cross walk study with the old and new schedules. It appears that if a party wants to rebut the rating based upon problems with the assumptions in the RAND study, then there will have to be evidence regarding those assumptions. The Court seemed to be re-visiting some of the discussion of theBoughner case. However, the Court did not linger on this discussion regarding the possibility of attacking the assumptions of the RAND study, and then the Court moved onto a discussion on the LeBoeuftheory.

2. The Court suggests that the LeBoeuf theory may still apply and a party can rebut the schedule when the injury impairs his or her rehabilitation. Since vocational rehabilitation benefits no longer exist in our current system, perhaps the Court is considering the voucher system. This LeBoeuf theory is mostly effective when the employee’s work injury directly caused the DFEC and other non-work injury factors are not involved, such as general economic conditions, language barriers, and education factors.

3. The applicant could try to show that his or her injury had complications that the RAND study did not consider. Here the Court gave an example of a foot injury that had complications from nerve damage may have had a severity that was not captured within the sampling of disabled workers in the RAND study who did not have similar complications. The Court left it to the WCAB to describe the method for this re-calculation.

The Court did not find any special meaning in the legislative change on SB899 when the legislature changed language in LC Section 4660 to reflect that a PD Award must reflect diminished future earning capacity. The previous version used the terminology that the Award should reflect the employee’s decreased ability to compete in the open labor market. The Court believes these terms are interchangeable.

The case was remanded for further proceedings because the Court was not able to determine whether the vocational experts in Ogilvie considered impermissible factors in the basis for their conclusions.

Further case-law will continue to shape our Ogilvie analysis.

Click here for summary of the Dahl case.

Click here for the Dahl decision.