In Contra Cost County v. Workers’ Compensation Appeals Board, and Dahl, Case No. A141046 [WCAB No. ADJ1310387], filed September 24, 2015, the California Court of Appeal, First Appellate District, annulled a Workers’ Compensation Appeals Board (WCAB) decision which approved the admission of evidence submitted by the injured worker to overcome the rating of the California Permanent Disability Rating Schedule (the Schedule). The court held that the disability rating provided under the Schedule may be rebutted only with evidence that the worker may not benefit from rehabilitation.
In the underlying workers’ compensation action, Mr. Dahl’s permanent disability rating as determined by the Schedule was 59 percent. Under the appeals court earlier decision in Ogilvie v. Workers’ Compensation Appeals Board (2011) 197 Cal.App.4th 1262 (Ogilvie), an injured worker’s scheduled rating can only be rebutted in limited circumstances. In the instant matter the applicant submitted evidence to the WCJ consisting solely of a vocational expert’s opinion that the applicant’s diminished future earnings capacity should have produced a higher rating. The WCJ made no findings with respect to whether Mr. Dahl was amenable to rehabilitation, but agreed with the expert that a higher rating was appropriate. The WCAB affirmed the WCJ’s decision, specifically stating that a “complete lack of amenability to vocational rehabilitation” is not necessary to rebut the rating provided under the Schedule. The County petitioned for a writ of review.
On appeal, the court of appeal concluded that rebuttal evidence presented by the applicant merely showed a lack of future earning capacity, and this is insufficient to rebut the scheduled rating. The Schedule, the court emphasized, was created for the very purpose of accounting for the injured worker’s decreased earning capacity. Noting the absence of any evidence that the applicant was not amenable to rehabilitation, the court held the WCJ and WCAB had improperly applied Ogilvie by applying the rehabilitation exception without the supporting determination that the injured worker was incapable of rehabilitation. The court held that, under Ogilvie, the scheduled rating is “presumptively correct” and the injured worker has the burden of establishing he or she is not amenable to rehabilitation due to the claimed industrial injury in order to rebut the scheduled rating.
This decision clarifies the limited nature of the rehabilitation exception articulated in Ogilvie and the limited circumstances in which disability ratings may be rebutted.
