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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ3600842 (SDO 0363689)
Regular
Jan 27, 2010

THEMAS POULIN vs. COUNTY OF SAN DIEGO

This case involves an applicant who sustained an industrial injury to his heart and hypertension. The initial award granted 65% permanent disability, which the defendant challenged, arguing the assigned Whole Person Impairment was disproportionately high and that Diminished Future Earning Capacity should be zero. The Appeals Board rescinded the original award and returned the matter for a new decision. This is because the trial judge had not yet considered the implications of the recent en banc decisions in *Almaraz II* and *Ogilvie II* regarding the rebuttability of scheduled permanent disability ratings and the evaluation of Diminished Future Earning Capacity. The Board noted concerns about the assigned impairment rating in light of the applicant's return to work and potential future earning capacity.

Workers' Compensation Appeals BoardDeputy SheriffIndustrial InjuryHeart ConditionHypertensionPermanent DisabilityWhole Person ImpairmentAgreed Medical EvaluatorReconsiderationAlmaraz
References
5
Case No. ADJ6721939
Regular
Mar 01, 2010

BERTHA NORIEGA GARCIA vs. PATRICK L. HINRICHSEN, CIVIL SERVICE EMPLOYEES INSURANCE COMPANY

This case is remanded for further proceedings because the Administrative Law Judge (ALJ) did not fully analyze the Diminished Future Earning Capacity (DFEC) adjustment factor under the *Ogilvie* decisions. The ALJ improperly relied solely on applicant's testimony for lost earnings without a proper *Ogilvie* analysis, including the duration of post-injury earnings and consideration of other factors affecting earning capacity. The ALJ must conduct a complete *Ogilvie* analysis, weigh the evidence, and explain how the adjusted DFEC factor reflects the applicant's actual earning capacity compared to the scheduled rating. The Board also clarified that temporary disability indemnity is not to be treated as post-injury earnings.

Diminished Future Earning CapacityDFECOgilvie analysisRebuttalScheduled Permanent Disability RatingPost-injury earningsEarnings lossTemporary disability indemnityPermanent and stationary dateTriers-of-fact
References
3
Case No. ADJ2802696 (STK 0206161)
Regular
Mar 23, 2009

PAM ELLIOTT vs. MOSAIC SALES SOLUTIONS, THE HARTFORD

The Workers' Compensation Appeals Board (WCAB) rescinded a prior award and returned the case to the trial level for further proceedings. The applicant, injured in 2004, argued the 2005 permanent disability schedule inadequately addressed her diminished future earning capacity. Citing its recent en banc decisions in *Almaraz/Guzman* and *Ogilvie*, the WCAB found these decisions established that both the AMA Guides and the diminished future earning capacity (DFEC) portions of the 2005 Schedule are rebuttable. The case was remanded for further consideration of the applicant's arguments in light of these binding precedents.

Workers' Compensation Appeals BoardPetition for ReconsiderationPermanent Disability Rating2005 ScheduleAMA GuidesDiminished Future Earning CapacityVocational Rehabilitation ExpertRebuttable PresumptionStare DecisisAlmaraz/Guzman
References
5
Case No. ADJ6875600
Regular
Nov 18, 2014

Sharon Walter vs. International Capital Group, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted reconsideration to further develop the record regarding applicant Sharon Walter's diminished future earning capacity. The Board found the vocational expert evidence presented was inadequate to support a finding of total permanent disability or to rebut the future earning capacity factor as required by *Ogilvie*. The case is remanded to the trial level to allow for the selection or appointment of a vocational expert to assess applicant's diminished future earning capacity, and the trial judge may then address claims for increased permanent disability.

Workers Compensation Appeals BoardPermanent DisabilityFuture Earning CapacityVocational ExpertReconsiderationLabor Code Section 4662Labor Code Section 4658(d)(2)OgilvieAgreed Medical ExaminerApportionment
References
2
Case No. ADJ4192266 (VNO 0544329)
Regular
Mar 07, 2011

JOHN HENRY vs. CITY OF SANTA MONICA, Permissibly Self-Insured

This case involves a police officer's workers' compensation claim for multiple injuries. The applicant was awarded 85% permanent disability and an additional 15% increase due to the employer's failure to offer suitable work within 60 days of the applicant reaching permanent and stationary status. The defendant sought reconsideration, arguing it had offered work and that the applicant's post-injury earnings rebutted the diminished future earning capacity (DFEC) presumption. The Appeals Board granted reconsideration, rescinded the prior award, and returned the case for further proceedings. The Board found the employer's work offer was invalid because the applicant had not reached permanent and stationary status for all his injuries at the time of the offer. Furthermore, the defendant failed to adequately rebut the DFEC presumption by not presenting comprehensive evidence regarding earning capacity beyond just post-injury earnings.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPermanent DisabilitySection 4658(d)Diminished Future Earning CapacityDFECQualified Medical EvaluatorQMEAgreed Medical Examiner
References
4
Case No. SJO 0253554
Regular
May 21, 2007

ANTHONY FELIX vs. CRESCENT TRUCK LINES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) rescinded the previous award due to an improper calculation of permanent disability based on diminished future earning capacity (DFEC). The WCAB found that the administrative law judge erred by directly converting the vocational expert's DFEC finding into an overall permanent disability percentage without proper application of statutory guidelines. The case is returned for further development of the record regarding how DFEC modifiers in the rating schedule reflect actual earning capacity loss.

Diminished Future Earning CapacityVocational ExpertPermanent Disability RatingAMA GuidesSection 4660ReconsiderationFindings and AwardAgreed Medical EvaluatorWCJ ReportRating Specialist
References
1
Case No. ADJ3834539 (OXN 0143663)
Regular
Nov 13, 2014

ALFRED RASGADO vs. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS, STATE COMPENSATION INSURANCE FUND

The Appeals Board affirmed the WCJ's decision, which found a $55\%$ permanent disability rating and a $15\%$ increase for the applicant. The Board held that diminished future earning capacity (DFEC), as determined by vocational experts, can rebut the scheduled permanent disability rating, provided impermissible nonindustrial factors are excluded. The applicant's stipulated average weekly wage and CalPERS pension are not determinative of earning capacity, as permanent disability compensates for both physical loss and reduced earning capacity, not directly for lost earnings. The Board clarified that apportionment of permanent disability is the WCAB's duty, not that of a vocational expert.

Workers' Compensation Appeals BoardAlfred RasgadoState of California Department of CorrectionsState Compensation Insurance FundPermanent DisabilityLabor Code section 4658(d)Permanent Disability Rating ScheduleDiminished Future Earning Capacity (DFEC)Vocational ExpertOgilvie v. City and County of San Francisco
References
3
Case No. GRO 33090, GRO 33495
Regular
Jan 16, 2008

MANUEL MARTINS vs. CITY OF ARROYO GRANDE

This case involves an applicant who sustained admitted industrial injuries to his low back and auditory system. The Workers' Compensation Appeals Board rescinded the previous award, finding the record insufficient regarding the applicant's diminished future earning capacity (DFEC) and its impact on the permanent disability rating. The matter is remanded for further development of the record to clarify how the DFEC modifier in the rating schedule reflects actual earning capacity loss and to reconsider litigation costs for a vocational expert.

Workers' Compensation Appeals BoardDiminished Future Earning CapacityPermanent Disability Rating2005 ScheduleAMA GuidesVocational ExpertLitigation CostsReconsiderationJoint Findings and AwardMaintenance Worker
References
1
Case No. ADJ2262922 (SRO 0041418)
Regular
Jul 07, 2011

DEBBIE LEVINE vs. STARBUCKS, INC., GALLAGHER BASSETT SERVICES, INC.

The applicant sought reconsideration of a permanent disability rating of 42%, arguing the vocational expert's assessment of diminished future earning capacity (DFEC) was rebutted and that Labor Code section 4662 should apply for total disability. The Appeals Board denied the petition, finding that the applicant failed to present substantial evidence to rebut the DFEC, as she never sought employment and her vocational expert's opinion was largely attributed to economic factors. Furthermore, the Board found no basis for applying Labor Code section 4662, as the applicant's alleged permanent total disability was not supported by persuasive medical or vocational evidence. The applicant's unsupported claim of zero earning capacity was contradicted by medical opinions.

Diminished Future Earning Capacity2005 PDRSOgilvie IOgilvie IIrebuttalLabor Code section 4662permanent total disabilityvocational expertsubstantial evidenceAME
References
5
Case No. ADJ4299001 (SAL 0110239)
Regular
Mar 10, 2009

JOAQUIN CORTEZ (MARTINEZ) vs. FRU-CON CONSTRUCTION CORPORATION, ZURICH AMERICAN INSURANCE COMPANY

The Workers' Compensation Appeals Board rescinded a prior award and returned the case for further proceedings. The Board found that the workers' compensation judge (WCJ) improperly disregarded the AMA Guides and relevant case law when determining permanent disability. Specifically, the WCJ's reliance on vocational expert opinions for diminished future earning capacity (DFEC) was inconsistent with established precedent. The matter is remanded for the WCJ to re-evaluate permanent disability consistent with recent en banc decisions addressing rebuttal of the AMA Guides and DFEC portions of the rating schedule.

Workers' Compensation Appeals BoardJoaquin CortezFru-Con Construction CorporationZurich American Insurance CompanyIndustrial InjuryTemporary Total DisabilityPermanent DisabilityDisability Evaluation UnitRebuttalAmerican Medical Association Guides
References
3
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