This decision permits very specific, though somewhat flexible, ways for rebutting the DFEC calculations but is bound to generate more litigation as litigants try figuring out the details.
In this just-issued en banc opinion (decided 6-1, with the newest Appeals Board member - Commissioner Aghazarian - voting with the majority and Commissioner Caplane dissenting), the Commissioners ruled that the Diminished Future Earnings Capacity (DFEC) portion of the 2005 Rating Schedule could be rebutted, but only through very specific means.
The facts involved a transit operator with admitted knee and spine injuries. After compromising on the conclusions reached by the parties' respective QME's, at trial the parties stipulated that, if the applicant's disability were
rated in accordance with the 2005 Schedule, it would rate 28% after adjustment for age and
occupation and after apportionment.
But the applicant sought to rebut the scheduled rating by filing joint reports from two rehab counselors who opined that, to a reasonable degree of vocational probability, the applicant's actual diminished future
earning capacity was somewhere in excess of 50%.
The WCJ ultimately ruled that the applicant had in fact rebutted the rating schedule and awarded her 40% PD based on three alternative rating methods.
The en banc decision agreed that the rating schedule could be rebutted and, in a lengthy discussion went over various alternative methods for determining how to rate when the schedule was rebutted.
In general, the Board concluded that in most situations, the rating could NOT be rebutted:
(A) by establishing the percentage to which an injured employee's future earning capacity has been diminished, nor
(B) by taking two-thirds of the injured employee's estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating.
And that in the usual case, the DFEC portion of the 2005 Schedule could be rebutted in a manner consistent with Labor Code Section 4660 - including section 4660(b)(2) - which mainly speaks of the RAND study's data and "upon data from additional empirical studies."
And then the Board goes on to define exactly what it means by the above paragraph. The following is the stated procedure to be used:
"(1) obtaining two sets of wage data (one for the
injured employee and one for similarly situated employees), generally through the Employment
Development Department (EDD);
(2) doing some simple mathematical calculations with that wage
data to determine the injured employee's individualized proportional earnings loss;
(3) dividing the
employee's whole person impairment by the proportional earnings loss to obtain a ratio; and
(4) seeing if the ratio falls within certain ranges of ratios in Table A of the 2005 Schedule.
If it
does, the determination of the employee's DFEC adjustment factor is simple and relates back to the
Schedule.
If it does not, then a non-complex formula is used to perform a few additional
calculations to determine an individualized DFEC adjustment factor."
Rather than attempting to explain the Board's reasoning (and additionally mandated procedures to be used), it is highly suggested that the actual opinion be read, through the link at the end of this article, since the decision is quite detailed in its analysis of the pros and cons of the alternative rating methods.
It should also be noted that this case can still be appealed through a writ to the District Court of Appeal and, thus, may not be the final word on the issue.
The case is Ogilvie v. San Francisco.
To read the full opinion,
→
CLICK HERE.
