The Court of Appeal Has Spoken: Ogilvie Has Been Eradicated. But is the Cure Worse Than The Disease?
July 29, 2011
In perhaps the biggest shake-up of California workers' compensation law this year, the California First District Court of Appeal reversed and remanded the Workers' Compensation Appeals Board's en banc decision in City and County of San Francisco v. WCAB (Ogilvie), which was certified for publication on July 29, 2011 (No. A126344).
In its hotly anticipated opinion, the Appellate Court declared it was sending the case back to the Workers' Compensation Appeals Board because it could not decide whether Ogilvie had effectively rebutted the 2005 Permanent Disability Rating Schedule, based on the record.
The Court rejected the notion that a party could rebut the diminished future earning capacity adjustment table that is part of the rating Schedule, thereby eviscerating mathematical-based challenges. It soundly declared that the WCAB acted in excess of its authority by devising its new methodology, because "nothing...authorizes or compels the calculation of an alternative diminished future earning capacity adjustment factor."
The Court agreed with the City and County's position that only the final percentage of permanent disability may be rebutted by a party, not one of its component parts.
However, the Court offered three distinct criteria by which the scheduled percentage of permanent disability may be rebutted. In so doing, it may have kicked the hornet's nest.
First, the Court, sensibly, provided that the Schedule may be rebutted when a party can show a factual error in the preparation of the Schedule or the application of the formula. This "technical" approach would be appropriate where an injured employee's non-industrial medical condition was included in a rating, or where the Schedule does not cover the particular impairment involved.
Second, the scheduled rating may be rebutted when a claimant can demonstrate that the nature or severity of an injury is not captured within the sampling of disabled workers that was used to compute the adjustment factor. Consideration of these "omission[s] of medical complications," will surely result in increased litigation as it leaves the door open as to what constitutes a "medical complication."
Finally, the Court resurrects the California Supreme Court decision of LeBoeuf v. WCAB (1983) 34 Cal.3d 234 by opining that the Schedule may be rebutted by demonstrating that the employee is not amenable to rehabilitation and, therefore, has suffered a greater loss of future earning capacity than reflected in the scheduled rating.
While we consider this Decision to be favorable for defendants, our victory may be Pyrrhic. Even though the Court concluded that only the scheduled percentage of permanent disability, and not the component DFEC table can be rebutted, the Court has left us with vague notions of what might constitute a medical complication to warrant rebuttal of the Schedule.
It will be interesting to see what criteria Ogilvie cites in support of her argument on remand, as well as how this Decision will be used by applicants' attorneys to continue to circumvent the scheduled disability.
By: Natalie Cordellos, San Francisco
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