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Case Law Database

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

Case No. ADJ1205641 (MON 0324473)
Regular
Jan 02, 2014

TERESA EDGE vs. RALPH'S GROCERY STORE

This case concerns Teresa Edge's petition for reconsideration of a prior Board decision which reduced her permanent disability award from 100% to 45%. The Board denied reconsideration, upholding its previous decision that the applicant did not sufficiently rebut the Diminished Future Earning Capacity (DFEC) adjustment under the 2005 Permanent Disability Rating Schedule, as interpreted by *Ogilvie III*. Additionally, the Board affirmed its recalculation of the applicant's average weekly earnings based on the unrebutted wage statement. The Board found no error in its prior decision or good cause to further develop the record.

Diminished Future Earning CapacityDFEC2005 PDRSOgilvie IIIAgreed Medical ExaminerAMEvocational rehabilitationvocational expertMontana factorspermanent disability rating
References
Case No. ADJ2779438 (AHM 0141003) ADJ2276665 (AHM 0142839) ADJ4661552 (AHM 0100533)
Regular
Jan 29, 2013

Vern Botts vs. Orange County Transportation Authority, Tristar Management

The Workers' Compensation Appeals Board denied the Petition for Removal filed by Orange County Transportation Authority and Tristar Management. The Board found that the trial judge was correctly ordered to conduct further proceedings to determine if the applicant could rebut the Diminished Future Earning Capacity (DFEC) adjustment, as required by the *Ogilvie III* decision. Defendant's arguments regarding prejudice from further evidence introduction and discovery closure were rejected as the trial judge's actions were in line with appellate directives and defendants had ample opportunity to address the issues. The Board adopted the judge's report, finding no basis for removal.

Petition for RemovalOrange County Transportation AuthorityTristar ManagementVern BottsADJ2779438ADJ2276665Workers' Compensation Appeals BoardPermissibly Self-InsuredAgreed Medical ExaminersStuart Green M.D.
References
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. ADJ5836774
Regular
Nov 04, 2015

Benjamin Mesanovic vs. Specialty Termite, National Liability and Fire Insurance Company

In this workers' compensation case, the applicant sought reconsideration of a decision denying his claim to rebut the Permanent Disability Rating Schedule (PDRS). The applicant argued his diminished future earning capacity (DFEC) was greater than the PDRS accounted for, citing vocational expert testimony. The Workers' Compensation Appeals Board (WCAB) denied the petition, finding the applicant failed to prove his industrial injury precluded vocational rehabilitation, a requirement to rebut the PDRS. The WCAB concluded that the applicant's vocational expert's opinion did not meet the legal standards for rebuttal as established in *Ogilvie v. City and County of San Francisco*.

Diminished Future Earning CapacityPDRSOgilvie IIIVocational RehabilitationRebuttalAMA GuidesPermanent DisabilityApportionmentIndustrial InjuryWCJ
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
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. ADJ2779438 (AHM 0141003), ADJ2276665 (AHM 0142839), ADJ4661552 (AHM 0100533)
Regular
Apr 04, 2012

VERN BOTTS vs. ORANGE COUNTY TRANSPORTATION AUTHORITY, TRISTAR RISK MANAGEMENT

The Workers' Compensation Appeals Board granted reconsideration of an award finding an applicant sustained industrial injuries causing permanent disability. The defendant argued the administrative law judge erred by failing to account for a prior award and non-industrial factors in the current disability rating. Crucially, the Board rescinded the award, remanding the case to the trial level. This is to further develop the record specifically on whether the applicant rebutted the diminished future earning capacity factor, as interpreted by the recent *Ogilvie III* decision.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityApportionmentAgreed Medical ExaminerDiminished Future Earning CapacityDFECOgilvie formulaRebuttalIndustrial Injury
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. 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. 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
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