August
27, 2007 Source:
WorkInjury.com
----------------------------
C.A.1:
Court Uses Costco Case to Save, and Cost, Employer
At trial, one of the disputes was which rating schedule to use. A vocational rehabilitation expert was used to support any loss of earning capacity in the event the 2005 rating schedule ended up being found the appropriate schedule to use.
Ultimately, the WCJ -- and then the WCAB -- ruled that the 1997 rating schedule should be used.
On appeal the employer argued (a) it was erroneously to use the old rating schedule and (b) it was wrong to access costs for the VR expert against the employer because the issue the expert testified on was irrelevant in light of the Board's ruling that the old rating schedule was to be used (since earning capacity is not relevant under the old PDRS).
The appellate court gave and took.
It ruled the new rating should have been used in light of the Costco case. But that since the new rating was the one to use, the VR expert's testimony was relevant and thus chargeable as a cost against the employer.
[Doesn't that mean the Court is saying the WCAB ruled incorrectly on both issues (which rating schedule and charging the expert to the employer), but that once the first ruling was corrected, the originally incorrect second ruling became correct... Wow.]
Or, as the Court described it a bit less dramatically:
"Although the WCJ and Board did not assess future earning capacity due to their
erroneous utilization of the 1997 schedule, future earning capacity was an issue squarely
presented as a result of Lyngso's contention that the 2005 schedule applied. Fees for an
expert witness on this issue were appropriate."
The unpublished case is Lingo Garden Materials v. WCAB.
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