Ogilvie Writ Granted by First Appellate District

Ogilvie Writ Granted by First Appellate District

The California First District Court of Appeal has granted a Petition for Writ of Review in the matter of Ogilvie v. WCAB and City and County of San Francisco on August 20, 2010.  In so doing, they have consolidated the separate petitions for writ of review filed by both the applicant and the City and County of San Francisco.

Coming one day after the Sixth Appellate District issued their published opinion in the Joyce Guzman matter; the First District Court of Appeal has directed that briefs be filed to address specific inquiries by the court.

Recognizing that Labor Code §4660(c) provides that the PDRS is "prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule" the court acknowledged in the Costa decision that parties retain the opportunity to present rebuttal evidence to ratings under the PDRS, at least initially, on a case by case basis.

In Ogilvie, the court has asked the parties to address the following specific questions:

  • 1. What must a party show to rebut the presumption in Labor Code §4660?

  • 2. Is showing that claimant's diminished earning capacity is different from the diminished earning capacity reflected in the PDRS for the claimant's scheduled rating sufficient to rebut the presumption in LC §4660?

  • 3. Should a general rule be formulated that provides guidance on the showing necessary for a party to rebut the presumption in LC §4660? If so, how should the general rule be articulated?

Petitioner Ogilvie must file her brief before August 30, 2010.  Respondent WCAB and the City and County of San Francisco may then file opposition briefs on or before September 10, and Ogilvie will be allowed until September 20, 2010 for a supplemental reply brief.  The matter will thereafter be set for oral argument.

What this means for you

The September 3, 2009 WCAB en banc Ogilvie decision is still good law, notwithstanding the Court of Appeal's grant of this writ.  Pending completion of this proceeding individual WCJs are still free to apply Ogilvie when appropriate.

However, in the interests of judicial economy a prudent WCJ may defer any determination of Ogilvie issues pending the outcome of the Court of Appeal's decision.

GMK will continue to aggressively defend applicants' Olgivie claims before the WCAB and raise the issue of deferral of Ogilvie issues pending the outcome of this Petition for Writ of Review.

© Copyright 2010 Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.