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Ogilvie v. WCAB (City & County of San Francisco)(2011)

By: Vic R. Redula, esq.

Let us review the facts of this case. Wanda Ogilvie worked for the City and County of San Francisco as a Muni bus driver for 17 hears. On April 1, 2004 injured her back and right knee while driving a bus that was being towed to the repair yard. She underwent total right knee replacement in May 2006. A spine surgeon had also recommended that she undergo spinal fusion surgery but she declined. She never returned to work. Since this was a pre SB 899, both sides had the choice of qualified medical evaluator. As a compromise between the two medical examiners' estimate of her disability, the parties stipulated that she sustained permanent disability equal to 28% as adjusted per the 2005 Permanent Disability Rating Schedule (PDRS). At trial, Ms. Ogilvie presented evidence intended to rebut the scheduled rating of 28% Each party submitted vocational rehabilitation expert evidence to established what Ms. Ogilvie actually lost in her earning capacity as a result of this injury. The trial judge agreed that the PDRS was rebutted and awarded her 40% final permanent disability. The defendants appealed. The divided WCAB (6 commissioners in favor and 1 commissioner dissented) issued two en banc decisions. Those were previously reviewed in this column below. On July 29, 2011, the First Appellate District, Division Three of the Court of Appeal of the State of California reversed the WCAB and held that the injured worker may dispute his or her scheduled rating on the grounds that it does not accurately reflect that worker's true diminished earning capacity due to an industrial injury. It can be done in the following ways: 1) By showing a factual error in the calculation of a factor in the rating formula or application of the formula; 2) By showing the omission of medical complications aggravating the employee's disability in preparation of the rating schedule; or 3) By demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating. The three methods given by the Appeals Court appear too formidable that it looks futile to rebut the scheduled rating at first blush. Fortunately for us, it is NOT that formidable. It actually gave us a tool to get a higher permanent disability award than the scheduled rating by using vocational experts, in appropriate situations, to establish that a particular injured worker suffered a greater loss of future earning capacity.

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