By Robert G. Rassp, Esq.
The year 2011 has been noteworthy for many events in our workers’ compensation system and as much for events that did not occur. So this year, we will add a bonus – the Top Five Events In 2011 That Did Not Occur But Should Have in our workers’ compensation system in California. But first, we will share our totally arbitrary, un-scientifically based, non-parametric, not evidence based, and completely anecdotal analysis of the top ten workers’ compensation events in California in 2011. That last sentence perfectly describes the AMA Guides, doesn’t it? But we digressed, so here goes:
1. The Final Decision in Wanda Ogilvie vs. City and County of San Francisco, or “Ogilvie III”[fn1]
On July 29, 2011, the First District Court of Appeal issued its landmark decision reversing the WCAB en banc decisions of how a party may rebut a scheduled DFEC adjustment factor in a permanent disability rating based on the 2005 PDRS. The California Supreme Court denied a hearing in the case on October 26, 2011. So the case is binding on all WCAB trial judges, panels and the WCAB unless the legislature changes Labor Code section 4660 or a competing case eventually conflicts with the Ogilvie decision and that conflict is resolved by the Supreme Court.
The parties came up with two ways to rebut a scheduled DFEC adjustment, Judge David Hettick came up with a third way, the WCAB came up with a fourth way – the “Ogilvie Formula” – and the DCA came up with their own methods. So now you have three possible ways to rebut a scheduled DFEC adjustment factor – by showing an error in the way the data was used to arrive at the scheduled DFEC adjustment or in its application; the injured worker cannot be rehabilitated (a “LeBoeuf” rebuttal); or a medical complication results in a higher loss of future earning capacity than what the scheduled DFEC adjustment factor reflects.
2. New Faces at the DIR, DWC and Governor’s Offices
1. Ogilvie vs. WCAB (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 “Ogilvie III;” Ogilvie vs. City and County of San Francisco (2009) 74 Cal. Comp. Cases 248 (“Ogilvie II” WCAB en banc decision); Ogilvie vs. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (“Ogilvie I”).
2. Valdez vs. Warehouse Demo Services (2011) 76 Cal. Comp. Cases 970 (WCAB en banc decision) issued on 9/27/11, 76 Cal. Comp. Cases 665 issued on 7/14/11, 76 Cal. Comp. Cases 330 issued on 4/20/11. You need to read them together to get the full picture.
3. Messele vs. Pitco (2011) 76 Cal. Comp. Cases 1187 issued on 11/4/11; 76 Cal. Comp. Cases 956, issued on 9/26/11. The later one counts but refers to the earlier lengthy decision that adds 5 days for mailing. The US Postal Service announced on December 5, 2011 that a “First Class” letter will no longer be delivered the next day – it will now take between two and five days for delivery, rather than one to three days as previously advertised. Does this mean CCP section 1013a needs to be amended?
4. Christine Baker vs. WCAB, (2011) 52 Cal. 4th 434, 257 P. 3d 738, 129 Cal. Rptr. 3d 133, 76 Cal. Comp. Cases 701, August 11, 2011 California Supreme Court decision.
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