Court of Appeal case on rebutting rating schedule using Ogilvie (the “LeBoeuf method”) is denied

This is a Court of Appeal published case

This is a very significant case for workers’ compensation principles.

The applicant suffered a cumulative trauma injury to her neck and right shoulder. The parties went to an Agreed Medical Examiner (AME). The parties agreed that the AME correctly found the whole person impairment (WPI) to be 59 percent permanent disability. The applicant sought to rebut the rating with a vocational expert and the defendant provided their own vocational expert.

The Workers’ Compensation Judge (WCJ) reviewed the Ogilvie case after testimony. The applicant did not try to use the first or third rebuttal method in Ogilvie. The applicant sought to use the second rebuttal method. The WCJ found the applicant 59 percent disabled and did not rebut her diminished future earning capacity. The Workers’ Compensation Appeals Board (WCAB) reversed and remanded.

On remand the WCJ indicated the applicant had a 79 percent disability based on diminished future earning capacity.

The Court of Appeal reviewed Ogilvie in depth. In this case there was no reason to believe the applicant rebutted her diminished future earning capacity. There was no evidence that the injury even limited her rehabilitation prospects. Applicants cannot rebut their disability rating merely by offering an alternative diminished earning capacity.

Case: Contra Costa County v. WCAB (Dahl)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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