Ogilvie v. Workers' Compensation Appeals Board
197 Cal. App. 4th 1262
Cal. Ct. App.2011Background
- Ogilvie, a 17-year CCSF bus driver, sustained a work injury in 2004 leading to knee surgery and back issues; she did not return to work and pursued workers’ compensation benefits.
- Senate Bill No. 899 (SB 899) amended §4660 to require diminished future earning capacity be calculated via RAND-based empirical data, while preserving the schedule’s prima facie status.
- Parties stipulated a 28% scheduled permanent disability rating adjusted for age, occupation, and diminished earning capacity.
- Ogilvie attempted to rebut the 28% rating by presenting vocational-earning-capacity evidence, arguing it showed greater loss than the schedule accounts for.
- WCJ adopted alternative calculations when finding the schedule rebuttable but not using SB 899-compliant methods; final rating varied across three methodologies.
- WCAB, on rehearing, held the schedule’s diminished earning capacity adjustment could be rebutted, adopting a RAND-based method; thus, the case was set for further proceedings and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a scheduled rating can be rebutted by evidence of greater loss of earning capacity. | Ogilvie argues the RAND-based adjustment (diminished earning capacity) should be rebuttable and show a higher loss than the schedule reflects. | CCSF contends the schedule is prima facie and only final rating or calculation errors may rebut it; the WCAB exceeded authority. | Yes, the schedule is rebuttable only for certain specified errors or misapplications; remanded to determine proper rebuttal method. |
| What showing is required to rebut the diminished earning capacity adjustment under SB 899? | Ogilvie contends vocational experts can rebut the adjustment as reflecting true diminished earning capacity. | CCSF asserts the rebuttal must be through error in the formula, data, or application, not a general greater loss. | Rebuttal may be based on (i) factual error in the formula or its application, (ii) omission of medical complications, or (iii) lack of amenability to rehabilitation; exact parameters to be decided on remand. |
| Did SB 899 authorize the WCAB to create a new methodology for recalculating earning capacity? | Ogilvie argues the new RAND-based methodology is permissible if it accords with 4660. | The WCAB exceeded its authority by devising a new methodology not grounded in pre-SB 899 precedents. | No, the WCAB’s new methodology exceeded its authority; remand for proceedings consistent with the opinion. |
Key Cases Cited
- Livitsanos v. Superior Court, 2 Cal.4th 744 (Cal. 1992) (framework for industrial injury and occupational disability; impairment vs. compensation balance)
- Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd., 187 Cal.App.4th 808 (Cal. App. 2010) (schedule as prima facie evidence; precludes automatic impairment without rebuttal)
- LeBoeuf v. Workers' Comp. Appeals Bd., 34 Cal.3d 234 (Cal. 1983) (rebuttal when rehabilitation or earning capacity is impacted by injury)
- Gill v. Workers' Comp. Appeals Bd., 167 Cal.App.3d 306 (Cal. App. 1985) (consideration of open labor market vs. impairment in earning capacity)
- Brodie v. Workers' Comp. Appeals Bd., 40 Cal.4th 1313 (Cal. 2007) (legislative intent to promote consistency; careful reading of SB 899 changes)
- Ritchie v. Workers' Comp. Appeals Bd., 24 Cal.App.4th 1174 (Cal. App. 1994) (historical use of impairment/earning capacity notions in pre-SB 899 era)
- Sidders v. Workers' Comp. Appeals Bd., 205 Cal.App.3d 613 (Cal. App. 1988) (pre-SB 899 context for evaluating disability and earning capacity)