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

Case No. ADJ4299001
Regular
Mar 08, 2010

JOAQUIN CORTEZ vs. FRU-CON CONSTRUCTION CORPORTION, ZURICH NORTH AMERICAN INSURANCE

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to review the permanent disability rating of 54% awarded to applicant Joaquin Cortez. The defendant argued the rating was improperly calculated under *Ogilvie II*, which dictates the burden of proof lies with the party rebutting the scheduled rating. The WCAB found the vocational expert's analysis flawed due to contradictory assumptions about the applicant's pre- and post-injury earning capacity. Consequently, the WCAB reversed the 54% award, finding the applicant failed to rebut the scheduled 13% permanent disability rating and issued an award for 13% disability.

Ogilvie IIOgilvie IDFECPermanent DisabilityReconsiderationRebuttalVocational ExpertWhole Person ImpairmentRAND dataLabor Code section 4660
References
Case No. ADJ377932 (SRO 140247)
Regular
Sep 07, 2010

BARBARA PENNY vs. COMMUNITY ACTON PARTNERSHIP OF SONOMA COUNTY, STATE COMPENSATION INSURANCE FUND

In this case, the Workers' Compensation Appeals Board (WCAB) granted reconsideration of a prior award concerning applicant Barbara Penny's industrial injury. The WCAB rescinded the award and returned the matter for further proceedings. This decision was primarily based on the need to properly develop the record regarding the applicant's diminished future earning capacity (DFEC), specifically concerning the methodology for calculating lost earnings. The WCAB also noted that the applicant's claim for further medical treatment for body parts beyond the low back could be raised again at the trial level.

Workers Compensation Appeals BoardBarbara PennyCommunity Action Partnership of Sonoma CountyState Compensation Insurance FundADJ377932Opinion and Order Granting Petitions for ReconsiderationDecision After ReconsiderationFindings and AwardIndustrial InjuryCase Manager
References
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
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
Case No. ADJ326796 (SDO 0356156) ADJ6986002
Regular
Jan 19, 2010

THOMAS A. SMITH vs. COUNTY OF SAN DIEGO, Permissibly Self-Insured

This case involves applicant Thomas A. Smith, a deputy sheriff, seeking workers' compensation benefits for industrial injuries including hypertension, GERD, hiatal hernia, back injury, and skin conditions. The defendant, County of San Diego, sought reconsideration of a prior award, arguing new case law (*Almaraz II* and *Ogilvie II*) and factual errors in the original decision regarding cumulative trauma, permanent disability ratings, and reliance on medical evidence. The Appeals Board granted reconsideration to further study the issues and has rescinded the prior findings and award. The case is returned to the trial level for further proceedings and a new decision by the WCJ.

Workers' Compensation Appeals BoardDeputy SheriffHypertensionGastroesophageal reflux diseaseHiatal herniaIndustrial injurySkin injuryPermanent disabilityPetition for ReconsiderationAlmaraz
References
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
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
Case No. ADJ4659248 (MON 0335156)
Regular
May 19, 2011

Joseph Nollet vs. STATE OF CALIFORNIA DEPARTMENTOF CORRECTIONS, Legally Uninsured and Adjusted by STATE COMPENSATION INSURANCE FUND

This case involves a dispute over reimbursement for an applicant's expert witness fees in a workers' compensation claim. The defendant sought reconsideration of an order awarding these fees. The Appeals Board granted reconsideration and rescinded the award because the applicant failed to establish the expert's qualifications or present their report or testimony into evidence. The Board found that without this foundational proof, the administrative law judge could not properly exercise discretion regarding the reasonableness and necessity of the costs.

WCABJoseph NolletDepartment of CorrectionsState Compensation Insurance FundADJ4659248ReconsiderationExpert CostsLabor Code Section 5811Diminished Future Earning CapacityDFEC
References
Case No. ADJ3562853 (VNO 0546829) ADJ3653443 (VNO 0546830)
Regular
Sep 07, 2010

JEREMY PEREZ vs. WILSONA SCHOOL DISTRICT, SELF-INSURED SCHOOLS OF CALIFORNIA

The Workers' Compensation Appeals Board dismissed the defendant's petition for reconsideration because it was an interlocutory order, not a final decision on substantive rights or liabilities. The Board also denied the defendant's petition for removal, finding no substantial prejudice or irreparable harm. The original order required further record development to determine an alternate adjustment factor for diminished future earning capacity, as established by *Ogilvie* cases, and deferred the issue of apportionment. The Board reiterated that the party challenging the scheduled permanent disability rating bears the burden of proof.

DFECOgilvie IIBensonApportionmentReconsiderationRemovalInterlocutory OrderSubstantive RightIrreparable InjuryRAND data
References
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
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