2009-EB-9 (2009). Wanda Ogilvie v. City and County of San Francisco, Permissibly Self-Insured.
Court | California |
California Workers Compensation Decisions
2009.
2009-EB-9 (2009).
Wanda Ogilvie v. City and County of San Francisco, Permissibly Self-Insured
WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA
WANDA OGILVIE, Applicant,vs. CITY AND COUNTY OF SAN FRANCISCO, Permissibly Self-Insured,
Defendant(s).Case No.
ADJ1177048 (SFO 0487779) OPINION AND
DECISION AFTER RECONSIDERATION (EN BANC) (EN BANC) In this en banc decision, [1] we clarify the holdings reached in
our en banc decision of February 3, 2009.
In our February 3, 2009 decision, we held that: (1) the
diminished future earning capacity (DFEC) portion of the current Schedule for
Rating Permanent Disabilities (Schedule or 2005 Schedule) [2] is rebuttable;
(2) the DFEC portion of the 2005 Schedule ordinarily is not
rebutted by establishing the percentage to which an injured employee's
future earning capacity has been diminished; (3) the DFEC portion of the 2005
Schedule is not rebutted 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 (4) the DFEC portion of the 2005
Schedule may be rebutted in a manner consistent with Labor Code section 4660 -
including section 4660(b)(2) and the RAND data to which section 4660(b)(2)
refers.[3] Further, the DFEC rebuttal approach that is consonant with section
4660 and the RAND data to which it refers consists, in essence, of: (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.
In this decision, we hold: (1) the language of section 4660(c),
which provides that "the schedule . shall be prima facie evidence of the
percentage of permanent disability to be attributed to each injury covered by
the schedule," unambiguously means that a permanent disability rating
established by the Schedule is rebuttable; (2) the burden of rebutting a
scheduled permanent disability rating rests with the party disputing that
rating; and (3) one method of rebutting a scheduled permanent disability rating
is to successfully challenge one of the component elements of that rating, such
as the injured employee's DFEC adjustment factor, which may be accomplished by
establishing that an individualized adjustment factor most accurately reflects
the injured employee's DFEC. However, any individualized DFEC adjustment factor
must be consistent with section 4660(b)(2), the RAND data to which section
4660(b)(2) refers, and the numeric formula adopted by the Administrative
Director (AD) in the 2005 Schedule. Any evidence presented to support a
proposed individualized DFEC adjustment factor must constitute substantial
evidence upon which the Workers' Compensation Appeals Board (WCAB) may rely.
Moreover, even if this rebuttal evidence is legally substantial, the WCAB as
the trier-of-fact may still determine that the evidence does not overcome the
DFEC adjustment factor component of the scheduled permanent disability rating.
Otherwise, we affirm our prior decision.
I. BACKGROUND
The factual and procedural history through February 3, 2009 is
set forth in our en banc opinion of that date, which we incorporate by
reference.
On February 19, 2009, applicant filed a petition seeking
reconsideration of our February 3, 2009 decision. In that petition, applicant
contended in substance: (1) our suggestion that the parties ordinarily should
"establish the employee's actual earnings in the three years following his or
her injury" is inconsistent with section 4660 and violates the mandate of
Article XIV, section 4, of the California Constitution that administration of
the workers' compensation system "shall accomplish substantial justice in all
cases expeditiously"; (2) it is improper to compare an injured employee's
individualized rating to proportional earnings loss ratio to the aggregate
average rating to proportional earnings loss ratios in Table A of the 2005
Schedule, because the former ratio uses the standard whole person impairment
rating assigned by the AMA Guides [4] while the latter ratios use the standard
rating under the 1988 Schedule, which is fundamentally different; (3) it is
improper to use the numerical formula adopted by the 2005 Schedulem [5] because
that formula is not based on empirical data, as required by section 4660(b)(2),
and it has no purpose other than to justify the arbitrary range of 1.1 to 1.4
for the DFEC adjustment factors contained in the Schedule; (4) under section
4660(c), it is the permanent disability rating that is rebuttable, not an
individual element of the rating formula, and here applicant's vocational
expert was not challenging the DFEC element of the rating formula, but instead
was rebutting the scheduled rating by showing that it was not rationally
related to applicant's true disability and her empirically established
diminished future earning capacity; (5) before section 4660 was amended by
Senate Bill 899 (SB 899), [6] case law made it clear that an injured employee's
percentage of permanent disability was the same as the percentage of the open
labor market from which he or she was precluded; therefore, after SB 899, an
injured employee's percentage of permanent disability is the same as his or her
percentage of diminished future earning capacity; (6) the Schedule is not the
exclusive method of calculating permanent disability; therefore, a scheduled
permanent disability rating may be rebutted by vocational expert evidence
regarding the injured employee's percentage of diminished future earning
capacity, which should be deemed to equate to his or her overall percentage of
permanent disability; (7) the purpose of the Schedule is to convert the
non-empirical AMA Guides whole person impairment (WPI) rating
into an empirically-based measure of diminished future earning
capacity, and not to adjust WPI for diminished future earning
capacity; (8) the purpose of the Schedule's DFEC adjustment factors is to
assure that injured employees with the same diminished future earning capacity
will receive the same permanent disability rating regardless of the part of
body injured; however, the DFEC rebuttal method adopted by the Appeals Board
erroneously results in ratings that vary widely for workers with the same
diminished future earning capacity; (9) the language of the Schedule confirms
that permanent disability is measured by an injured employee's percentage of
diminished future earning capacity; (10) the Appeals Board improperly concluded
that an injured employee's percentage of diminished future earning capacity is
not tantamount to the employee's percentage of permanent disability; (11) the
permanent disability rating calculated by applicant's vocational expert is a
more accurate measure of applicant's true disability and, therefore, it rebuts
the permanent disability rating assigned by the Schedule; and (12) although the
Appeals Board can disallow any DFEC rebuttal evidence that does not comply with
the requirements of section 4660, including the specific language of section
4660(b)(2), the Appeals Board cannot require that only a single rebuttal
methodology - its own - be used, because such a mandate is illegal under
Rea v. Workers' Comp. Appeals Bd. (Milbauer)
(2005) 127 Cal.App.4th 625 [70 Cal.Comp.Cases 312]
(Milbauer).
On March 2, 2009, defendant, the City and County of San
Francisco, also filed a petition seeking reconsideration of our February 3,
2009 en banc decision. In that petition, defendant contended in substance: (1)
the DFEC component of the 2005 Schedule is defined by statute and that
definition cannot be altered by judicial intervention; (2) the Appeals Board
usurped the AD's regulatory authority over the 2005 Schedule; (3) the allowance
of individualized rebuttal of the Schedule's DFEC adjustment factors conflicts
with the requirement of section 4660(d) that "the schedule
shall promote consistency, uniformity and objectivity"; (4)
the allowance of individualized rebuttal of the Schedule's DFEC adjustment
factors conflicts with the intention of section 49 of SB 899 to reduce workers'
compensation costs; and (4) the cases upon which the Appeals Board relies do
not support the holding that permanent disability ratings under the new
Schedule are rebuttable.
On April 6, 2009, we granted reconsideration.[7] Concurrently, we
invited any interested person or entity to file and serve an amicus curiae
brief by May 1. We also gave each party until May 21 to file a single
consolidated brief in reply to the amicus briefs.
Pursuant to our invitation, we received a number of amicus curiae
briefs.[8] Each party also filed replies to the amicus briefs. [9]
II. DISCUSSION
In part, defendant's petition for reconsideration
challenges whether a...
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