By: Vic R. Redula, esq.
Another en banc decision significantly affecting the amount of benefits applicant becomes entitled to based on the residual disability resulting from his/her industrial injury is this case. The WCAB held that the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent wth Labor Code section 4660 including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers. It then proceded to outline how to do the rebuttal as follows:
1. Obtain two sets of wage data, one for the injured employee and one for similarly situated employees;
2. Determine the injured employee's individualized proportional earnings loss;
3. Obtain the ratio by divding the employee's whole person impairment by the proportional earnings loss; and
4. Compare the resulting ration wth the range of rations in Table A of the 2005 Schedule. If it is within the ranges in the table, then use the appropriate range. If the resulting ratio in 3. is not within the range of ratios, then the ratio is used in the formula above. The resulting number in the formula is then substituted for the DFEC factor.
This sounds a little complicated but it is not. The difficulty lies in persuading the Workers' Compensation Judge to follow your formula by convincing him/her that the 2005 Schedule was rebutted.
The results are very significant especially where the injured worker was not able to return to work after his/her industrial injury.
For example: Consider a 44-year old farmworker who suffered a serious back injury in 2005, and suffered residual impairment of 13% WPI. He has no education and is a monolingual spanish speaking worker. It is very difficult to find another job as a result and in fact did not find work within 3 years from the date of his injury. Using the 2005 Schedule without Ogilvie, 13% gets modified to 22% which is equal to $18,810.00 at the maximum rate of $220.00 per week. With Ogilvie, 13% gets modified to 39% which is equal to $42,680.00 at the same maximum rate.
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