By Richard M. "Jake" Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

The California 1st District Court of Appeal has granted the petitions for writ of review filed by both applicant and defendant in theOgilvie case requests that have been inactive since January and ordered the appeals consolidated for further briefing and hearing.

While the timing might imply a response to the hullabaloo over the 6th District’s decision in Martinez USD v WCAB (Guzman) which issued Aug. 19, the order is dated Aug. 20 and undoubtedly was decided prior to that date.

The 1st District tends to take a bit longer than some of the other districts to decide if a request for hearing is to be granted and this act is fairly consistent with this Court’s usual course of business. In an unusual move, the Court decided the record was adequate before it and did not order the clerk to request the WCAB forward its file (as is typical in such matters) for the Court to review (unless there is an objection and a request for the record to be supplemented).
 
However the Court did instruct the parties to submit additional briefing on what it apparently regards the key issue to be considered:
 
<i>Labor Code section 4660, subdivision (c) provides that California's Permanent Disability Ratings Schedule (PDRS) is "prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule." In Costa v. Hardy Diagnostic and State Compensation Insurance Fund (2006) 71 Cal. Comp. Cases 1797, the Workers Compensation Appeals Board ruled that even in light of Senate Bill No. 899, the parties retain the opportunity to present rebuttal evidence to ratings under the PDRS. Hardy also states that the evidence necessary to rebut a scheduled rating is to be decided, at least initially, on a case by case basis. (Id.) The parties are directed to file briefs addressing the following questions: What must a party show to rebut the presumption in section 4660? Is a showing that a claimant's diminished earning capacity is different than the diminished earning capacity reflected in the PDRS for the claimant's scheduled rating sufficient to rebut the presumption in section 4660? Should a general rule be formulated that provides guidance on the showing necessary for a party to rebut the presumption in section 4660? If so, how should the general rule be articulated? Petitioner Ogilvie shall file a supplemental opening brief on these issues on or before August 30, 2010. Respondents Workers' Compensation and Appeals Board and the City and County of San Francisco shall file a supplemental opposition on or before September 10, 2010. Petitioner Ogilvie may file a supplemental reply on or before September 20, 2010. The parties shall appear for oral argument in this matter when the matter is ordered on calendar. (A126344 and A126427)."</i>
 
The Court obviously considers the issue of how to rebut the schedule, not whether the schedule is rebuttable, as the issue to be answered and has directed the parties specifically to that issue.  The Court could just have easily asked “Did the W.C.A.B. do it right or should be find some other answer to what you do with Rebuttal to the PDRS?  While it is likely the briefs have addressed that issue, the Courts seems to want to focus on that question as opposed to the question of whether rebuttal is possible and the various other arguments regarding the case as an underground regulation etc.
 
Briefing is due to be completed by Sept. 20, and then the Court will set the case for oral argument.  It seems unlikely we will have a final decision from this court before the end of 2010.
 
In the third of our triumvirate of rating cases, SCIF v WCAB (Almaraz), briefing was concluded in early June. Action by the Court could come at any time to grant the petition for hearing , deny the writ or possibly issue an unpublished opinion going either way.  The 5th District is likely at least considering what the its sister Court in the 6th District did with the exact same issue but can agree, disagree or punt.

Disagreeing would set up a conflict of opinions on identical issues that can only be resolved by the Supreme Court taking some action. It could grant hearings in one or both cases, order one of the decisions unpublished or grant appeal in one of the cases and transfer back to the appellate court with instructions to consider the other case. Options abound at this point.
 
It is important to keep in mind that simply granting the petition for hearing does not invalidate the current WCAB en banc decision and workers' compensation judges and WCAB panels are still bound to rule on cases before them consistent with the en banc decision (See Diggle v Sierra Sands USD, 70 Cal. Comp. Cases 1480). While many judges are not anxious to proceed on cases involving Ogilvie issues and the WCAB has provided a good deal of guidance with some solid panel decisions, it is not possible to ignore this issue in cases where it has been properly raised and caution needs to be taken where an applicant attorney has raised the issue to make certain the record is fully developed and not left to a one-sided evidentiary record in the hopes the appellate courts will invalidate the Ogilvie holding and moot the issue.

<i>Richard M. "Jake" Jacobsmeyer is a founding partner for Shaw, Jacobsmeyer, Crain, Claffey & Nix in Oakland, a workers' compensation defense firm.</i>