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

Case No. ADJ7859239, ADJ7859246
Regular
Mar 10, 2014

BELINDA BURTON vs. SAN LUIS OBISPO CHILD DEVELOPMENT CENTER, REDWOOD FIRE AND CASUALTY INSURANCE COMPANY

The applicant seeks reconsideration of two decisions regarding permanent disability ratings, arguing she was denied the opportunity to rebut the defense's Diminished Future Earning Capacity (DFEC) expert report. The Board granted reconsideration, finding the applicant was deprived of due process by not being afforded adequate time to obtain a rebuttal report to the defense's late-disclosed DFEC expert report. The original decisions are rescinded, and the matters are returned for further proceedings, allowing both parties time to obtain rebuttal and response reports from their respective DFEC experts. Discovery will then be closed, and the parties can request trial.

Diminished Future Earning CapacityDFEC expert reportRebuttal reportDue processWCAB Rule 10507Mandatory Settlement ConferenceVocational expert evidencePermanent disability ratingReconsiderationFindings and Award
References
6
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
Significant
Sep 03, 2009

Wanda Ogilvie, Applicant vs. City and County of San Francisco, Permissibly Self-Insured

This en banc decision clarifies that a permanent disability rating established by the 2005 Schedule is rebuttable, the burden of rebuttal rests with the party disputing the rating, and a rating may be rebutted by challenging one of its components, such as the Diminished Future Earning Capacity (DFEC) adjustment factor.

Permanent DisabilityDiminished Future Earning CapacityDFECSchedulePrima Facie EvidenceRebuttableBurden of ProofRAND DataAMA GuidesOccupational Group
References
54
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. 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
Case No. ADJ3130090 (SFO 0488450)
Regular
Mar 12, 2009

GUSTAVO CORDON vs. GARL FORCE CONSTRUCTION, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration to address the defendant's challenges to a prior award. The administrative law judge had determined a $42\%$ permanent disability rating by rebutting the diminished future earning capacity (DFEC) provisions of the 2005 Schedule. However, the Board rescinded the award, remanding the case due to the WCJ's failure to follow the procedural requirements for rebutting the DFEC established in the en banc decision of *Ogilvie*. The Board emphasized that the WCJ must follow *Ogilvie* and may also consider further evidence on AMA Guides rebuttal issues consistent with *Almaraz*.

DFECpermanent disability ratingvocational rehabilitation expertSchedule for Rating Permanent DisabilitiesAMA Guidesrebuttableen banc decisionOgilvie v. City and County of San FranciscoAlmaraz v. Environmental Recovery ServicesLabor Code section 5811
References
6
Case No. ADJ2290172
Regular
Apr 26, 2011

LINDA JENKINS vs. FAMILY PRACTICE MEDICAL ASSOCIATES, EMPLOYERS COMPENSATION INSURANCE COMPANY

This case involved applicant Linda Jenkins seeking to reopen her workers' compensation award based on a change in the law following the *Ogilvie* decisions. The WCJ found good cause to reopen, ruling that *Ogilvie* established a new framework for rebutting the diminished future earning capacity (DFEC) component of permanent disability ratings. The defendant argued *res judicata* barred reopening and that *Ogilvie* was merely a clarification, not a change in law. The Appeals Board affirmed the WCJ's decision, holding that *Ogilvie* did indeed represent a significant change in law regarding DFEC rebuttal and permitted the reopening of applicant's case.

Workers' Compensation Appeals BoardReconsiderationFindings & OrderChange in LawOgilvieDiminished Future Earning Capacity (DFEC)RebuttalRes JudicataPermanent DisabilityAMA Guides
References
8
Case No. ADJ1205641
Regular
Mar 26, 2012

TERESA EDGE vs. RALPH'S GROCERY STORE

This case involves a deli manager injured in 2004, claiming 82% permanent disability and rebuttal of the Diminished Future Earning Capacity (DFEC) factor based on previous Appeals Board rulings. The defendant argued against the rebuttal and challenged the applicant's average weekly earnings calculation. The Appeals Board rescinded the original award and remanded the case for further proceedings. This is due to subsequent Supreme Court and Court of Appeal decisions, specifically *Baker* and *Ogilvie III*, which impact the proper application of permanent disability ratings and earnings calculations. The judge must now reconsider these issues in light of the new legal precedents.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardDeli ManagerIndustrial InjuryNeckShouldersHandsWristsPermanent Disability
References
5
Case No. ADJ3385753 (SFO 0495153)
Regular
Mar 17, 2009

LORETTA L. ENNON vs. WALGREENS, permissibly self-insured

This case involves an admitted industrial injury to the applicant's back and hip. The primary dispute concerns the applicant's permanent disability rating, which the trial judge set at 41% based on a vocational expert's opinion on diminished future earning capacity (DFEC). The defendant appealed, arguing the rating was excessive and the expert's opinion improperly applied. The Appeals Board rescinded the original award, remanding the case to the trial level to apply recent en banc decisions regarding the rebuttal of the DFEC and AMA Guides portions of the permanent disability rating schedule. This remand allows for further proceedings to ensure correct application of these established legal standards.

Workers Compensation Appeals BoardReconsiderationPermanent DisabilityDiminished Future Earning CapacityDFEC2005 ScheduleAMA GuidesVocational ExpertJeffrey MalmuthAgreed Medical Evaluator
References
4
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
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