August 23, 2010
While the compensation community has just started to try to digest the Sixth District's abstractly defensible, but realistically indigestible opinion in Guzman, the community has fresh hope that all is not lost in the wacky world of the new rating schedule--with the announcement Friday, August 20th, by the 1st District, Division 3, that it had granted both applicant's (Civil No. A126344) and defendant's (Civil No. 126427) writs in Ogilvie and consolidated them for all purposes since they share common factual and legal questions.
The Court referred back to Costa v. SCIF (2006) 35 Cal.Workers'Comp.Reptr 12, 71 CCC 1797, as indicating the Board's view that, notwithstanding SB 899, the parties retain the opportunity to present rebuttal evidence to ratings under the new schedule. Per the Court, Costa also states that the evidence necessary to rebut a scheduled rating is to be decided, at least initially, on a case-by-case basis.
The First District directed the parties to file briefs addressing the following questions:
The Court ordered Ogilvie to file a supplemental opening brief on these issues on or before 8/30/2010. The Board and the City and County of San Francisco will file supplemental opposition briefs on or before 9/10/2010. Ogilvie may then file a supplemental reply on or before 9/20/2010. The parties are further ordered to appear for oral argument when the matter is ordered on calendar.
To what degree will the Court entertain the argument that there should be no right to rebut the diminished future earnings capacity component of the rating schedule, as some parties have maintained? The way the Court has couched the issues, it seems to give short shrift to such a "wipe-out" argument, which failed to make any impression on the appellate panel in Guzman.
If the defense community has to live with some rebuttal mechanism, it would be all to the good that a set of rules be formulated as to how that can be accomplished, to cut down on the excesses, absurdities and unconscionable costs vocational "experts," blessed by Costa, have created for the parties and for the Board.
Further, some general rules will allow for a modicum of predictability to return to the litigation process, avoiding costly delays while the experts perform their voodoo on each case and allowing parties to settle cases rather than have to try them because no one can figure out whether the rebuttal evidence is real or all smoke and mirrors.
On to the briefs.