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Ogilvie: Supreme Court Denies Review
By Mark Gearheart, Esq.
 On October 26, 2011, the California Supreme Court issued an order denying defendants’ Petition for Review of the First District Court of Appeal’s opinion in Ogilvie v. City and County of San Francisco.  The Appellate Court opinion now stands as the law of the land.
 In its July 29, 2011 opinion (Ogilvie v. WCAB (2011) 197 Cal. App. 4th 1262; 76 Cal. Comp. Cases 624), the Court of Appeal reversed the Appeals Board and adopted applicant’s argument that where the scheduled permanent disability rating does not reflect an employee’s diminished future earning capacity, it can be rebutted.  The rebuttal methodology remains as set forth in pre-SB 899 cases, i.e., producing substantial evidence of what the actual diminished future earning capacity really is. 
 The Appellate Court opinion reaffirmed that the PDRS itself is rebuttable and that the parties may rebut the final scheduled rating
 The Court endorsed the use of vocational expert evidence to determine diminished future earning capacity, cautioning the parties that they would have to hew closely to the definition of DFEC set forth in Labor Code Section 4660(b) (2).  The Court also outlined several alternative rebuttal methodologies.  The Court opinion did not limit the parties to those rebuttal methodologies discussed by the Court.
 The Ogilvie matter itself will now be returned to the WCAB level where presumably there will be further proceedings consistent with the Court’s opinion to clarify exactly what percentage of loss earning capacity has been caused by the injury.
The denial of review by the Supreme Court is welcome news for injured workers and their advocates.  The Court of Appeal opinion opens the door to challenge the PDRS in those cases where its results are inaccurate and fail to reflect diminished future earning capacity caused by the injury.  The exact details of what types of evidence will be considered substantial in this regard will be further developed in future cases.
Click here for a copy of the DCA decision
Additional CAAA resources regarding Ogilvie are:
Posted 10-27-2011 1:29 PM by caaaAdmin

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