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Wanda Ogilvie v. Workers' Compensation Appeals Board et al

July 29, 2011

WANDA OGILVIE, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD ET AL., RESPONDENTS. CITY AND COUNTY OF SAN FRANCISCO, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD ET AL., RESPONDENTS.



(WCAB Case Nos. ADJ1177048, SFO0487779)

The opinion of the court was delivered by: Siggins, J.

CERTIFIED FOR PUBLICATION

(WCAB Case Nos. ADJ1177048, SFO0487779)

Labor Code section 4660, subdivision (c)*fn1 provides that the California Permanent Disability Rating Schedule (rating schedule) is "prima facie evidence" of the percentage of permanent disability to be attributed to an employee's work-related injury in a workers' compensation case. The core issue presented here is: What showing is required by an employee who contests a scheduled rating on the basis that the employee's diminished future earning capacity is different than the earning capacity used to arrive at the scheduled rating? Because we cannot conclude on this record whether Ogilvie effectively rebutted application of the rating schedule, we reverse the decision of the Workers' Compensation Appeals Board (WCAB), annul the award of benefits to Ogilvie, and remand for further proceedings consistent with our opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Injury

Ogilvie worked for the City and County of San Francisco (CCSF) as a Muni bus driver for 17 years. On April 1, 2004, the bus Ogilvie was driving broke down and needed to be towed back to the repair yard. Ogilvie rode inside the bus while it was being towed. As a result of being jostled about during the ride, Ogilvie hurt her back and right knee. After the condition of her knee continued to deteriorate, Ogilvie underwent knee replacement surgery in May 2006. A spine surgeon had also recommended that Ogilvie undergo spinal fusion surgery, but Ogilvie declined. She never returned to work. She filed for workers' compensation benefits.

Roughly three years after her injury, Ogilvie applied for a disability retirement. In reviewing her application, the retirement office told Ogilvie that taking a service retirement, rather than disability retirement, would be a better financial decision. So she took it. Around this time, two qualified medical examiners, one selected by Ogilvie and one selected by the CCSF, evaluated Ogilvie to determine her permanent disability rating. As a compromise between the two medical examiners' evaluations, the parties stipulated before the workers' compensation judge (WCJ) that for Ogilvie's injury the rating schedule under section 4660, as amended by Senate Bill No. 899 (2003-2004 Reg. Sess.), yields a permanent disability rating of 28 percent, as adjusted due to her diminished future earning capacity, age, occupation, and apportionment for non-industrial and pre-existing disability.

Proceedings Before the WCJ

In a trial before the WCJ, Ogilvie sought to rebut the 28 percent scheduled rating. Each party submitted an estimate of Ogilvie's diminished future earning capacity from a vocational rehabilitation expert who essentially compared Ogilvie's earnings before her injury with what she could be expected to earn after it. Each expert considered his evaluation to be superior to the scheduled rating because he considered such things as Ogilvie's education, skills, motivation, local job market conditions, work history, and vocational testing in arriving at Ogilvie's loss of earning capacity. Ogilvie contended that the opinions of both experts effectively rebutted the application of the scheduled rating and supported her claim to a permanent disability rating greater than 28 percent. The WCJ agreed based on the fact that the permanent disability indemnity associated with the 28 percent rating was less than Ogilvie's actual diminished future earning capacity calculated by either vocational expert.*fn2 Since a scheduled award of benefits would not sufficiently compensate Ogilvie for her diminished future earning capacity, the WCJ set about devising an alternative way to calculate Ogilvie's award. The WCJ employed three different methodologies.*fn3 After considering these methodologies, the WCJ settled upon a final permanent disability rating of 40 percent after taking into account Ogilvie's prior and nonwork-related injuries. The CCSF filed a petition for reconsideration.

Proceedings Before the WCAB

On February 3, 2009, the WCAB issued its en banc decision holding that Ogilvie could rebut the diminished future earning capacity adjustment table that is part of the rating schedule referenced in section 4660. The WCAB reasoned that because the rating schedule is prima facie evidence of an injured employee's disability, the diminished future earning capacity adjustment table must be rebuttable. But the WCAB also observed that the diminished future earning capacity adjustment must be rebutted in a manner that comports with section 4660. None of the methodologies used by the WCJ were consistent with section 4660, because none used "a numeric formula based on empirical data and findings" as section 4660 requires.*fn4 Instead, the WCAB created a new methodology that it considered consistent with section 4660, and was intended to replicate the empirically based method used in the RAND study that established the diminished future earning capacity adjustment in the rating schedule.*fn5

A dissenting member of the WCAB concluded that the proper way for an injured employee to rebut the rating schedule would be to rely upon the percentage of lost future earning capacity determined by expert witnesses. The dissent supported its position by saying this approach is in line with the common practice of courts to use such experts to determine earning capacity in civil cases. The majority rejected the dissent's methodology as subjective, nonempirical, and "bear[ing] absolutely no relationship to the statutory scheme" outlined in section 4660, subdivision (b)(2).*fn6

On rehearing, the WCAB clarified and affirmed its February 3, 2009 decision. In early October 2009, both Ogilvie and the CCSF filed the petitions for writ of review that are now before this court. While neither party is happy with the WCAB's decision, each party is unhappy for slightly different reasons. Although Ogilvie agrees that one means to rebut the rating schedule may be to challenge the diminished future earning capacity adjustment table, she asserts that another is to challenge the final overall permanent disability rating, which, she asserts, is most accurately done using vocational experts. The CCSF asserts that the WCAB exceeded its authority when it allowed Ogilvie to challenge the diminished future earning capacity adjustment table at all. Since the diminished future earning capacity is ...


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