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Case Law Database

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

Case No. ADJ2110739 (MON 0313927)
Regular
Oct 01, 2010

Rosalind Eskridge (Vallery) vs. TARGET STORES, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

This case returns to the trial level for a comprehensive re-analysis of applicant's permanent disability rating, specifically focusing on the Diminished Future Earning Capacity (DFEC) adjustment factor. The Board rescinded the prior award because the judge's decision did not fully adhere to the *Ogilvie* en banc decisions, which mandate a specific four-step analysis for rebutting the DFEC. The judge must now conduct a complete *Ogilvie* analysis, potentially developing the record further, to determine if the applicant's demonstrated earning loss and other relevant factors, including *Montana* factors, justify an individualized DFEC adjustment over the scheduled rating. The applicant bears the burden of proving that her evidence substantially overcomes the prima facie validity of the scheduled DFEC.

Workers' Compensation Appeals BoardDiminished Future Earning CapacityDFECPermanent Disability Rating Schedule2005 PDRSOgilvie analysisAgreed Medical ExaminerDisability Evaluation UnitDEUAgreed Medical Examiner
References
6
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. ADJ2079252
Regular
Jan 25, 2010

JON SHINI vs. PACIFIC COAST AUTO BODY & TRUCK, FARMERS SANTA ANA

The Workers' Compensation Appeals Board (WCAB) granted reconsideration and rescinded the prior award due to the administrative law judge's (WCJ) failure to fully analyze the issues presented in *Ogilvie I* and *Ogilvie II*. Specifically, the WCJ improperly applied the diminished future earning capacity (DFEC) rebuttal formula without sufficient evidentiary development regarding the applicant's post-injury earnings and potential for malingering. The Board remanded the case for further proceedings to conduct a complete *Ogilvie* analysis, including weighing the scheduled rating against the adjusted DFEC factor and considering factors such as the applicant's credibility. The defendant's contention regarding industrial injury to the psyche was not addressed, with the Board allowing it to be raised in further proceedings.

OgilvieDiminished Future Earning CapacityDFECReconsiderationRebuttalPermanent Disability Rating SchedulePost-injury earningsEarning capacityAgreed Medical EvaluatorMalingering
References
3
Case No. ADJ1310387 (OAK 0333577)
Regular
Jan 16, 2014

DOREEN DAHL vs. CONTRA COSTA COUNTY

This case concerns a workers' compensation claim for industrial injury to the applicant's neck and right shoulder. The primary issue on reconsideration was whether the applicant successfully rebutted the Diminished Future Earning Capacity (DFEC) adjustment factor in the Permanent Disability Rating Schedule (PDRS). The Board affirmed the WCJ's finding that the applicant's vocational expert provided sufficient testimony to rebut the PDRS rating for the shoulder injury by focusing on similarly situated workers, as permitted by *Ogilvie v. City and County of San Francisco*. The Board clarified that this *LeBoeuf* analysis can apply even with less than 100% permanent disability and does not impermissibly rely on non-industrial factors when assessing DFEC. Therefore, the WCJ's decision awarding future medical treatment and 79% permanent disability is affirmed.

Workers' Compensation Appeals BoardIndustrial InjuryNeck InjuryRight Shoulder InjuryMedical Records TechnicianCumulative PeriodPermanent DisabilityFuture Medical TreatmentDiminished Future Earning CapacityPermanent Disability Rating Schedule
References
11
Case No. ADJ664427 (MON 0350904)
Regular
Dec 02, 2010

RITA TIPTON vs. WACHOVIA BANK

The Workers' Compensation Appeals Board granted reconsideration, rescinding a prior award. The Board found the applicant failed to rebut the scheduled Diminished Future Earning Capacity (DFEC) adjustment factor. Consequently, the case is returned for recalculation of permanent disability using the scheduled DFEC, and correction of temporary disability dates and attorney's fees. The decision emphasizes the applicant's burden to provide substantial evidence for DFEC rebuttal, which was not met here.

WCABReconsiderationPermanent Disability RatingDiminished Future Earning Capacity (DFEC) Adjustment FactorOgilvieRebuttal BurdenAgreed Medical EvaluatorCumulative InjuryPsyche InjuryTemporary Disability
References
3
Case No. ADJ1177048
En Banc
Sep 03, 2009

WANDA OGILVIE vs. CITY AND COUNTY OF SAN FRANCISCO

This en banc decision clarifies that a permanent disability rating established by the Schedule is rebuttable, the burden of which rests with the disputing party. It affirms that a primary method of rebuttal is to challenge a component element, such as the Diminished Future Earning Capacity (DFEC) adjustment factor, by providing an individualized factor consistent with statutory requirements.

Diminished Future Earning CapacityDFEC2005 ScheduleRebuttablePrima Facie EvidencePermanent Disability RatingLabor Code section 4660RAND dataIndividualized Adjustment FactorWhole Person Impairment
References
51
Case No. ADJ6598351
Regular
Mar 01, 2012

ALENTINA RODRIGUES vs. COUNTY OF SACRAMENTO

The Workers' Compensation Appeals Board denied Valentina Rodrigues' petition for reconsideration. The Board adopted the findings of the Workers' Compensation Administrative Law Judge, who determined that the applicant failed to rebut the diminished future earning capacity (DFEC) adjustment factors from the 2005 Permanent Disability Rating Schedule. The applicant's arguments regarding the calculation of these factors and a due process violation due to inability to access raw data were rejected. The Board also noted that the non-inoperability of the 2005 rating schedule despite not being amended was a valid point.

Workers' Compensation Appeals BoardValentina RodriguesCounty of SacramentoOrder Denying ReconsiderationPetition for ReconsiderationWorkers' Compensation Administrative Law Judge2005 Rating ScheduleLabor Code Section 4660(c)Simi v. Sav-Max FoodsInc.
References
5
Case No. ADJ2360182 (MON 0334561) ADJ493129 (MON 0334562) ADJ3850358 (MON 0334563)
Regular
Oct 18, 2010

YOLANDA M. PIDECH vs. METROPOLITAN STATE HOSPITAL, STATE COMPENSATION INSURANCE FUND

The Appeals Board rescinded the prior award and returned the case for further proceedings because the WCJ did not adequately consider the applicant's post-injury earning capacity as required by *Ogilvie I* and *Ogilvie II*. The WCJ failed to adequately explain the calculation of the applicant's earnings loss and did not provide substantial medical evidence supporting her inability to work. The Board requires further development of the record, particularly medical opinions on work capacity, before a complete *Ogilvie* analysis can be performed. This includes assessing whether the earning loss is industrially caused and weighing the adjusted DFEC factor against the scheduled factor.

Ogilvie analysisDFEC rebuttalpost-injury earning capacitypermanent disability ratingAgreed Medical Evaluatorsubstantial medical evidencevocational rehabilitationloss of earning capacityindustrial injurytemporary disability
References
13
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. ADJ784749 (AHM 0115079)
Regular
Aug 02, 2010

Carlos Bautista vs. Prime Factors, Inc., Factory Filament, Inc., Isaac Powell, Uninsured Employers Fund

This case involves a workers' compensation claim by Carlos Bautista for an industrial injury to his spine sustained in November 2003. The applicant was hired in California by Prime Factors Inc., an illegally uninsured employer, and then flown to Mississippi for a job. The Workers' Compensation Appeals Board (WCAB) is denying Isaac Powell's petition for reconsideration of prior findings. These findings established California's jurisdiction, the employer's uninsured status, and the applicant's industrial injury.

Workers' Compensation Appeals BoardPrime FactorsInc.Isaac PowellUninsured Employers FundIndustrial InjuryCervical SpineThoracic SpineLumbar SpineLabor Code Section 5900
References
0
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