WCAB Decision in Ogilvie

Date:  September 3, 2009, Volume: 09-6, Issue: 04

On Thursday, September 3, 2009, the WCAB issued its en banc decision in Ogilvie: OGILVIE II: “DFEC is now alchemy.” Filed at the same time as its companion decision in Almaraz/Guzman, this en banc decision is in many ways parallel. A number of pages in these opinions are identical as these cases share common legal issues, arising from the central question as to whether or not the 2005 PDRS is rebuttable, and if so, how and to what extent? i Here the key holdings:

  • The 2005 PDRS is rebuttable in all of its component elements, including the DFEC
  • Affirming that a PD rating is a function of a combination of factors; An injured employee’s percentage of permanent disability does not equate to his or her percentage of DFEC
  • The 2005 PDRS, which incorporates the DFEC component, is presumed valid as it relates to the use of the RAND data in establishing the ranges of ratios of standard ratings to proportional wage losses in Tables A and B
  • The four step methodology suggested for a DFEC rebuttal in its February opinion is valid and represents a consistent application of the governing statutes
  • A rebuttal to the DFEC is accomplished by a party showing that the alternative adjustment factor most accurately reflects the injured employee’s DFEC
  • Three years of post injury wage loss is “ordinarily” used but not mandated. In individual cases, a longer or shorter period would suffice
  • In cases where there are two years or less of post earning losses as the applicant was TD, the WCAB suggests it may be difficult to assess earning capacity. In such an instance, the parties could use the Tables for the DFEC and then permit the applicant to re-open the case (within 5 years from DOI) to allege additional PD, based upon further wage loss data and higher individualized DFEC
  • A party shall not be required to offer a DFEC rebuttal by using either statistically valid empirical data or aggregated data, i.e. a large body of numbers, such as the body of studies of injured workers used by RAND.
  • Applicant’s contention that a scheduled permanent disability rating is rebutted by a vocational expert’s opinion on the injured employee’s DFEC percentage by using a formula (lifetime post-injury earning capacity / estimated lifetime pre earning capacity = %) is rejected
  • The party rebutting the schedule (DFEC) has the same burden of overcoming the presumption affecting the burden of proof accorded to the Schedule

COMMENT: THIS DECISION CREATES A MULTIPLER RATHER THAN A DFEC ADJUSTMENT FACTOR By far, this decision has much more potential practice implication than does Almaraz/Guzman. Here, the applicants simply have to obtain EDD post earning wage data, complete the formula and then contend that if the ratio of rating over proportion earning loss is beyond the Tables, then they should have the greater adjustment, since it would be based on “real situations” and not an applied table. Applicant attorneys won’t need vocational experts, since they simply need to do the math, apply the estimated post injury wage loss based upon EDD or other wage data, and they have a major multiplier rather than an adjustment factor. When CAAA or an outside vendor can gather the statewide wage data for “similarly situated injured workers by injury type” and then place this information on line or through some simple software application, which does the math…well DFEC becomes alchemy. Are we facing petitions to re-open based upon post injury, post award earnings losses, within a 5 year period from date of injury?

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