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

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. 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 The Appeals Board rescinded the original award and returned the matter for a new decision.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. ADJ3303329 (MON 0363353) ADJ6697361
Regular
Oct 21, 2010

RAMIRO O. VELASQUEZ vs. MOONLIGHT MOLDS, CYPRESS INSURANCE COMPANY, BROOKSHIRE HATHAWAY HOME STATE COMPANIES

The Workers' Compensation Appeals Board rescinded a prior award, returning the case for further proceedings. The original award found the applicant suffered an industrial injury resulting in 64% permanent disability and the need for further medical treatment, including a rebuttal of the future earning capacity component. The defendant challenged the permanent disability rating, arguing the judge improperly applied the Ogilvie standard for assessing diminished future earning capacity. The Board found the applicant's testimony alone insufficient to rebut the scheduled factor, necessitating development of the record on earning capacity.

Workers' Compensation Appeals BoardMoonlight MoldsCypress Insurance CompanyRamiro O. Velasquezsandblasterlaborerindustrial injurylow backfuture earning capacitypermanent disability
References
5
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. ADJ4219757 (OAK 0331125)
Regular
Dec 08, 2008

RENITA GUNDERSON vs. WEST CONTRA COSTA HEALTH CARE, ZURICH NORTH AMERICA

This case involved a dispute over the applicant's permanent disability rating, which the WCJ set at 60% based on a vocational expert's diminished future earning capacity opinion, deviating from the standard 2005 Schedule. The defendant appealed, arguing the expert's opinion lacked substantial evidence and that permanent disability cannot solely be based on diminished earning capacity. Ultimately, the Appeals Board rescinded the original award and remanded the case to consider a proposed compromise and release agreement due to potential future medical needs and Medicare/Social Security liability concerns.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardPermanent DisabilityLabor Code section 4660(c)2005 ScheduleDiminished Future Earning Capacity (DFEC)Vocational Rehabilitation ExpertSubstantial EvidenceFunctional Capacity Evaluation
References
1
Case No. MISSING
Regular Panel Decision
Jun 22, 2015

Claim of Barrett v. New York City Department of Transportation

The case involves an appeal from a Workers’ Compensation Board decision regarding a claimant injured in a 2011 work-related motor vehicle accident. A WCLJ classified the claimant with a permanent partial disability and a 25% loss of wage-earning capacity, ruling that he would be entitled to 250 weeks of benefits if his full wages ceased. The Board affirmed this, leading the employer to appeal, arguing that the claimant's current full wages meant a 100% wage-earning capacity, rendering the 25% loss finding unlawful. The court affirmed the Board’s decision, distinguishing between 'loss of wage-earning capacity' (fixed, for benefit duration) and 'wage-earning capacity' (fluctuating, for weekly rates).

Workers' CompensationPermanent Partial DisabilityWage-Earning CapacityLoss of Wage-Earning CapacityBenefit DurationAppellate ReviewStatutory InterpretationMotor Vehicle AccidentNew York Workers' Compensation BoardDisability Classification
References
2
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. 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. 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. MISSING
Regular Panel Decision

Claim of Frey v. Town of Newstead

This case concerns an appeal from a Workers' Compensation Board decision that awarded benefits to a volunteer firefighter, the claimant, for a causally related loss of earning capacity under the Volunteer Firefighters’ Benefit Law. The claimant was injured in a motor vehicle accident while on duty for the Town of Newstead. A Workers' Compensation Law Judge initially determined a permanent partial disability with a 50% to 75% loss of earning capacity, which the Board affirmed. The employer, Town of Newstead, appealed, arguing a lack of substantial evidence. The appellate court reversed the Board's decision, citing that the claimant's treating physician released her to 'regular duty' with only minor restrictions, and her earnings had increased in the same job since the accident. The matter was remitted to the Workers’ Compensation Board for further proceedings.

Volunteer Firefighters' Benefit LawEarning Capacity AssessmentPermanent Partial DisabilityAppellate Court ReversalRemittal to BoardWorkers' Compensation Board DecisionMedical Opinion EvidenceEmployment RestrictionsWage Increase EffectLine of Duty Injury
References
3
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