FREE DOWNLOAD: Ogilvie II (Calif. WCAB en banc issued 9/3/2009)

FREE DOWNLOAD: Ogilvie II (Calif. WCAB en banc issued 9/3/2009)

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Wanda Ogilvie v.  City and County of San Francisco, Permissibly Self-Insured

ADJ1177048 (SFO 0487779)

This decision was filed and served on September 3, 2009.

The holding involves the application or interpretation of Labor Code section 4660(c), which continues to state:  "This schedule … shall be prima facie evidence of the percentage of permanent disability…."  

In a prior decision the Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC)  portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 – including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

The Appeals Board granted reconsideration of the prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted.

In this Decision After Reconsideration the Appeals Board clarifies the prior decision, holding that: (1) the language of section 4660(c), which provides that “the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s DFEC adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee’s DFEC.

 The Appeals Board stated further that the individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director (AD) in the 2005 Schedule, and  it also must constitute substantial evidence that the Workers’ Compensation Appeals Board (WCAB) determines is sufficient to overcome the DFEC adjustment factor component of the scheduled permanent disability rating.  Otherwise, the prior decision was affirmed.

Attachment: http://www.lexisnexis.com/documents/pdf/20090903051145_large.doc