The PDRS is Presumptively Correct – Rebuttal per Ogilvie Utilizing a “Le Bouef” Approach is a Rare Case
Regarding Contra Costa County vs. WCAB (Dahl).
In a case which will significantly limit the scope of an Ogilvie rebuttal argument, the 1st District Court of Appeal on 9/24/15 rejected a WCAB panel decision holding that it is a rare case in which an applicant or employer can rebut a scheduled rating.
Under Ogilvie vs. WCAB, it was established that the PDRS can be rebutted in one of three ways, most notably by showing a diminished future earning capacity (DFEC) which is greater than reflected in the PDRS because the injury has left the applicant non-amenable to rehabilitation. This has come to be known as the Le Bouef approach, based upon that leading California Supreme Court case.
In Dahl, the DEU strict rating was 59% permanent disability. Based upon vocational expert opinion the WCAB awarded 79% permanent disability.
It has become common place for applicant attorneys (as was done in Dahl) to utilize vocational experts to indicate that their analysis of an applicant’s impairment more accurately measures her DFEC by comparing her to a group of individuals claimed to be more similarly situated. This in turn produces a higher rating than that provided by the PDRS and the statutory DFEC factor. Thus, in virtually every case an expert could be utilized to provide a statistical analysis of a group of individuals claimed to be more similarly situated to the applicant than as identified in the schedule.
The WCAB panel decision in Dahl upheld this approach. However, the Court of Appeal rejected it by holding that the statutory DFEC component in the PDRS captures what the vocational experts are trying to rebut, and it is prima facie evidence of an accurate rating. The court stated in part:
- “…Dahl’s rebuttal is that her expert’s analysis of the earning capacity is superior to the method and rating called for by the statute.”
- Such an approach “…is at odds with Ogilvie, which rejected a similar attempt to simply substitute a vocational expert’s…methodology for the statutorily prescribed rating system.”
- Under Ogilvie it is “…a rare case in which an applicant could rebut a scheduled rating”
The Court of Appeal stated that Dahl’s rebuttal did not consist of any evidence that she was incapable of participating in vocational rehabilitation. If a worker is trying to rebut the schedule by showing DFEC, the first step must be whether the worker is precluded from taking advantage of vocational rehabilitation and participating in the labor force. And just because an applicant may not be restored to her full pre-injury earning capacity, that “…is precisely what the statutory formula for DFEC was intended to capture.”
As such, the court implied (but did not decide) that this Ogilvie rebuttal method can only be utilized in 100% total cases.
Thus, it would appear that if there is any evidence an injured worker can benefit from some form of vocational retraining you cannot rebut the schedule.
On the other hand, this decision does support the concept that vocational rehabilitation evidence is appropriate to rebut the PDRS. But clearly, the focus from the applicant’s perspective cannot be on the potential for lost future earnings, but rather must be on the ability and amenability of an injured worker to be rehabilitated. It would appear that rebuttal under this approach will be extremely limited as most claimants can be.
The court also pointed out that the Le Boeuf approach must be limited to cases where the DFEC is attributable to the employee’s work related injury, and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education.