California: How to Prove a LeBoeuf Rebuttal

California: How to Prove a LeBoeuf Rebuttal

New Clues on Applying an Ogilvie III Analysis in a DFEC Rebuttal Case

In a recent panel decision of Dahl v. Contra Costa County (ADJ1310387) issued on May 18, 2012, the WCAB commissioners shed some light on how to apply an Ogilvie III analysis in a DFEC rebuttal case. Set forth below is the historical perspective for this decision, which is key to understanding the WCAB’s analysis.

Over the past several years, the courts have attempted to provide the legal community with a variety of roadmaps for rating permanent disability (PD) using the 2005 Permanent Disability Rating Schedule (PDRS).

Labor Code Section 4660 sets forth the four factors that must be considered in the permanent disability rating string as follows:

1. Nature of the physical injury or disfigurement,

2. Occupation of the injured employee,

3. Age at the time of the injury, and

4. Employee's diminished future earning capacity (DFEC) (Prior to 2004 and SB 899, this factor was “ability to compete in the open labor market”).

In their en banc decision of Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613, the WCAB defined the roles of each participant in the rating process, and clarified what evidence was necessary to successfully prove each of these four factors of PD. The commissioners also discussed how to apply the 2005 PDRS and the correct application of the AMA Guides.

The court recognized in Blackledge that there may be circumstances in which the strict rating of the AMA Guides may not be accurate. Subsequently, the WCAB issued an en banc decision in Almaraz v. Environmental Recovery/Guzman v. Milpitas Unified (Almaraz II/GuzmanII) (2009) 74 Cal. Comp. Cases 1084, providing substantial guidance in those types of cases. Almaraz II/Guzman II focused on rebuttal of the Whole Person Impairment (WPI), but the WCAB was quick to point out that it might be possible to rebut any component of the rating string. This holding was affirmed with an extensive opinion by the 6th DCA in Milpitas Unified v. WCAB (Guzman III) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837.

Given that the DFEC component of the rating string was a likely target for rebuttal, there was considerable debate as to how this might be accomplished. Over the past several years, the legal community has watched with great interest as the Ogilvie case tackled this issue and has worked its way through the system, as follows:

2/3/09: Ogilvie v. City and County of SF (Ogilvie I) (2009) 74 Cal. Comp. Cases 248 (WCAB en banc)

9/3/09: Ogilvie v. City and County of SF (Ogilvie II) (2009) 74 Cal. Comp. Cases 1127 (WCAB en banc)

7/29/11: Ogilvie v. WCAB (Ogilvie III) (2011) 197 Cal. App. 4th 1262, 76 Cal. Comp. Cases 624 (1st DCA)

10/26/11: Supreme Court denied Petition for Writ of Review

3/16/12: Case settled with a Stipulated Award

The DCA in Ogilvie set forth three possible methods of rebuttal of the DFEC:

1. When “a party can show a factual error in the application of a formula or the preparation of the schedule.” The court then provided a list of cases to review as examples.

Fidelity & Cas. Co v. WCAB (1967) 252 Cal. App. 2d 327, 335

State of Cal v. IAC (1954) 129 Cal. App. 2d 302, 304

Young v. IAC (1940) 38 Cal. App. 2d 250, 255

National Kinney v. WCAB (1980) 113 Cal. App. 3d 203

2. The DCA explained the basis for their second rebuttal method as follows: “Another way the cases have long recognized that a scheduled rating has been effectively rebutted is when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating… This is the rule expressed in LeBoeuf.” (LeBoeuf v. WCAB; Alameda-Contra Costa Transit District (1983) 34 Cal. 3d 234 [48 Cal. Comp. Cases 587] (LeBoeuf))

3. The DCA also provided for a third method of rebuttal when the case dealt with “medical complications.” The court stated: “In certain rare cases… a scheduled rating may be rebutted when a claimant can demonstrate that the nature or severity of the claimant's injury is not captured within the sampling of disabled workers that was used to compute the [DFEC] adjustment factor…” [by the RAND study.] “We leave it to the WCAB … to prescribe the exact method for such a recalculation that factors the employee's anticipated [DFEC] into the data used by the RAND Institute.”

The DCA then kicked the case back to the trial level to start over, with instructions to determine which rebuttal method, if any, might best be utilized under the fact situation. It would be up to the parties to devise how that method was to be quantified and calculated. It would be up to the judicial authorities to determine whether the parties had done this correctly and had adequately rebutted the strict rating of the AMA Guides.

After the Ogilvie case issued, there has not been a lot of guidance from the courts as to the best approach to take in these situations. However, on May 18, 2012, a WCAB panel issued its decision in Dahl v. Contra Costa County, which explains how this new process might work, especially for parties who are using the LeBoeuf method of rebuttal as set forth in Ogilvie.

The facts in the Dahl case are relatively straightforward. Doreen Dahl was working for Contra Costa County as a medical records technician when she suffered a cumulative trauma to her neck and right shoulder ending March 14, 2005. The parties agreed that the strict rating of the AMA Guides would be 59% PD. However, Ms. Dahl didn’t feel that a 59% PD rating adequately considered her diminished future earning capacity (DFEC). Both applicant and defense attorney retained a vocational rehabilitation (VR) expert to provide evidence on this issue.

After trial, the WCJ reviewed the medical and VR evidence and found that if there were a viable method of rebuttal under Ogilvie, it would have to be the one based on the LeBoeuf case, as follows. The WCJ explained:

“The second avenue of rebuttal remains… However, quantification of this aspect remains elusive. Where, to employ the former vernacular, an injury effectively renders an employee unable to compete for jobs in the open labor market or, to use the current phrase, it results in a total loss of earning capacity, LeBoeuf allows a finding of permanent, total disability. It is where vocational evidence points to a greater impact than provided by the schedule, but less than total disability, that some quantitative substitute for the schedule must be made. This is where the Court of Appeal has left us somewhat bereft of guidance…”

Therefore, lacking any “quantitative” measure for a value less than 100% PD, the WCJ felt constrained to hold that the injured worker had not rebutted the 2005 PDRS and that her total PD rating was 59%. The WCJ explained that since the injured worker was not totally and permanently disabled, he was not able to consider the LeBoeuf rebuttal to the DFEC component as set forth in Ogilvie.

The applicant petitioned for reconsideration in this case, and the WCAB granted her petition. The WCAB discussed the findings of the Ogilvie court and reviewed the theory behind the second DFEC rebuttal method based on the LeBoeuf case. When the Supreme Court decided LeBoeuf in 1983, Labor Code Section 4660 included the same four components of the rating string as exists today, EXCEPT for the last one. Instead of the DFEC component, the permanent disability rating was to take into consideration the injured worker’s “ability to compete in the open labor market.” The Ogilvie court said that basically these two terms were interchangeable. Therefore, any standard that existed using the old terminology (“ability to compete in the open labor market”) should continue to be viable under the new terminology (“DFEC”). Thus, according to Ogilvie III, LeBoeuf lives.


Parties should review the entire Dahl panel decision for the basic premise that the LeBoeuf rebuttal method applies in all cases, not just in cases where the injured worker is 100% disabled. This decision, although not precedent,[fn1] has persuasive value, and may also hold clues as to how other similar cases may be decided.


1. See Footnote 7 in Guitron v. Sante Fe Extruders (2011) 76 Cal. Comp. Cases 228 (en banc): “…Appeals Board panel decisions are not binding precedent…we consider them to the extent we find their reasoning persuasive.  Unlike unpublished appellate court opinions, which, pursuant to California Rules of Court, rule 8.1115(a), may not be cited or relied on … WCAB panel decisions are citable, even though they have no precedential value.”

© Copyright 2012 LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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