California: Permanent Disability; Rebuttal of Scheduled Rating and Vocational Rehabilitation Evidence

Arturo Diaz v. E&F Demolition, 2021 Cal. Wrk. Comp. P.D. LEXIS 82 (Board Panel Decision). Lexis Advance/Lexis+ subscribers can link on that cite. All others can view the PDF below.

Applicant in this case sought to rebut the scheduled permanent disability rating of 21 percent for her foot/toe injury and obtain an award of 50 percent permanent disability based on vocational expert evidence. However, the evidence established that applicant was amenable to vocational rehabilitation and therefore could not rebut the scheduled rating. This case serves as a good reminder that rebuttal of the scheduled rating under Ogilvie and Dahl based on loss of future earning capacity is only available in cases where the employee is seeking an award of 100 percent permanent disability and shows an inability to be retrained.

Here are our headnotes for this panel decision:

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB found that record in this case was not sufficient to support WCJ’s award of 50 percent permanent disability for applicant’s 1/17/2018 injury to his right foot and toes, and instead awarded 21 percent permanent disability based on agreed medical examiner’s reporting, when WCAB found that opinion of vocational expert relied upon by WCJ was insufficient to rebut scheduled permanent disability rating under Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, because evidence established that applicant was amenable to vocational rehabilitation to enable him to return to labor market, and that contrary to applicant’s assertion, vocational reporting did not provide sufficient evidence to successfully rebut scheduled rating based on alternate method in Ogilvie, under which scheduled rating may be rebutted when employee demonstrates that nature or severity of injury is not captured within sampling of disabled workers that was used to compute adjustment factor, and fact that applicant had injury to his right foot and toes leading to amputation of his second toe, did not establish that scheduled rating failed to account for severity of applicant’s injury.

Costs—Vocational Experts—WCAB upheld WCJ’s award of costs under Labor Code § 5811 for applicant’s vocational expert, when WCAB found that cost of vocational expert will be allowed if it was reasonable and necessary at time it was incurred, even if vocational evidence does not successfully rebut permanent disability rating, and that vocational evidence secured by applicant in this case was reasonable and necessary to determine applicant’s vocational feasibility.

Reminder: Panel decisions are not binding precedent.