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Grinberg: WCAB Rejects Ogilvie Claim

  • State: California

My best efforts to be elected president have come to naught. We ran a tough campaign, but it turns out that a workers’ compensation defense attorney who is not eligible to serve as president for a variety of reasons just doesn’t make a very appealing candidate.

Gregory Grinberg

Gregory Grinberg

Now that I can, once again, direct my attention to being both humble and a blogger, let alone a humble blogger, I have just one question for my beloved readers: What is your favorite type of doll? 

There are GI Joe action figures and there are Barbie dolls, but my personal favorite (if I’ve set up the joke correctly) is the case of Dahl, in which the Court of Appeal curbed the reach of Ogilvie and the ability of applicants to rebut the permanent disability rating schedule.

So I bring you the case of Balgeman v. Get a Mattress/SCIF, a panel decision recently issued by the Workers' Compensation Appeals Board.

The panel qualified medical examiner in that case had issued a report that rated to 24% permanent disability based on a lower extremity injury, with subsequent compensable consequence injuries claimed to the left hip and psyche. However, applicant’s vocational rehabilitation expert found that applicant had sustained a “94% diminished future ability to compete in the labor market” as well as a “94% loss of preinjury access to the labor market” because applicant was limited to sedentary work.  

By contrast, defendant’s vocational rehabilitation expert concluded that applicant was amenable to rehabilitation, even with a sedentary work restriction.

After the trial judge adopted the strict orthopedic rating of the QME and rejected the vocational rehabilitation analysis, applicant appealed, arguing that “the rating of her permanent disability is most accurately determined by the vocational evidence of her loss of her future earning capacity, and not by applying the presumptively correct PDRS.” 

The WCAB instead held that the language of Ogilvie allows rebuttal of the PDRS when “the employee is not amenable to rehabilitation.” The opinion notes that of the three methods for rebuttal outlined in Ogilvie, applicant chooses to create a fourth: “a greater loss of her earning capacity than reflected in the scheduled rating, even though her future earning capacity may be increased by her participation in vocational rehabilitation programs.” 

The panel held that both Ogilvie and Dahl prohibit such additional approaches to rebutting the PDRS.

The WCAB denied reconsideration, and applicant was stuck with her orthopedic rating.

I am one of those die-hards who opines that injuries sustained on or after Jan. 1, 2013, are not subject to PDRS rebuttal because there is no diminished future earning capacity in the PDRS rating formula. Of course, the WCAB has been hesitant to adopt this theory as law, but hope springs eternal and, one can hope that all the practitioners in the land will soon enough adopt this line of reasoning.

Aside from this threshold position, however, when faced with one of these vocational rehabilitation cases, one of the early questions to ask is if the applicant is amenable to rehabilitation. If he or she is, then rebuttal of the PDRS should not be available.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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