Filed 9/24/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CONTRA COSTA COUNTY,
Petitioner,
v.
WORKERS’ COMPENSATION A141046
APPEALS BOARD and DOREEN DAHL,
Respondents. (WCAB No. ADJ1310387)
We granted Contra Costa County’s (the County) petition for a writ of review,
which challenged a Workers’ Compensation Appeal Board’s (the WCAB) decision
awarding Doreen Dahl a permanent disability rating of 79 percent.1 The workers’
compensation judge (the WCJ) initially found, and both parties agree, that Dahl’s
permanent disability rating as determined by the California Permanent Disability Rating
Schedule (the Schedule) is 59 percent. Dahl sought to rebut that rating, invoking Ogilvie
v. Workers’ Compensation Appeals Board (2011) 197 Cal.App.4th 1262 (Ogilvie).
Ogilvie held that there are only three ways in which the scheduled rating for an injured
employee may permissibly be rebutted. Dahl sought to invoke the second method
approved in Ogilvie (the “LeBoeuf method”)2 under which the employee shows she “will
1
Four amici have filed briefs in support of the County: California Chamber of
Commerce, California Workers’ Compensation Institute, California Association of Joint
Powers Authorities, and the California State Associations of Counties–Excess Insurance
Authority (CSAC-EIA). One amicus, the California Applicants’ Attorneys Association
(CAAA), has filed a brief in support of Dahl.
2
The method was approved by the California Supreme Court in LeBoeuf v.
Workers’ Compensation Appeals Board (1983) 34 Cal.3d 234 (LeBoeuf).
1
have a greater loss of future earnings than reflected in a rating because, due to the
industrial injury, the employee is not amenable to rehabilitation.” (Ogilvie, 197
Cal.App.4th at p. 1275.) Dahl’s “rebuttal,” however, included no evidence that the
industrial injuries she sustained to her neck and shoulder rendered her incapable of
rehabilitation. Rather, her “rebuttal” consisted solely of a vocational expert’s opinion
that his method for determining Dahl’s diminished future earnings capacity produced a
higher rating than that of the rating produced by the Schedule and that his method more
accurately measured Dahl’s diminished future earnings.
Dahl’s attempted rebuttal did not comport with any of the methods approved in
Ogilvie for rebutting the rating provided using the rating schedule and is therefore
foreclosed by Ogilvie. Accordingly, we reverse the WCAB’s decision, and annul the
award.
BACKGROUND
I.
Legal Framework
The extent of an injured workers’ compensation applicant’s permanent disability is
assessed by reference to the statutorily defined Schedule. (Lab. Code § 4660, subd. (d).)3
The Schedule consists of four components: (1) the nature of the physical injury or
disfigurement; (2) the occupation of the applicant; (3) the age of the applicant; and (4) the
applicant’s diminished future earnings capacity. (§ 4660, subd. (a).) “The nature of the
physical injury or impairment to be rated in the schedule is to be based upon the
American Medical Association’s Guides to the Evaluation of Permanent Impairment, and
‘an employee’s diminished future earning capacity shall be a numeric formula based
upon empirical data and findings . . . prepared by the RAND Institute for Civil
Justice . . . .’ (§ 4660, subd. (b)(1) & (2).) The schedule is to ‘promote consistency,
uniformity, and objectivity,’ (§ 4660, subd. (d)), and the scheduled rating is ‘prima facie
3
All future statutory references are to the Labor Code unless otherwise specified.
2
evidence of the percentage of permanent disability to be attributed to each injury covered
by the schedule.’ (§ 4660, subd. (c).).” (Ogilvie, supra, 197 Cal.App.4th at p. 1271.)
In Ogilvie, Division Three of this court addressed “whether, in light of the
amendments to section 4660 enacted in Senate Bill No. 899 [in 2004], it is permissible to
depart from a scheduled rating on the basis of vocational expert opinion that an employee
has a greater loss of future earning capacity than reflected in a scheduled rating.”
(Ogilvie, supra, 197 Cal.App.4th at p. 1271.) Giving consideration to the purpose behind
and the language of the amendments, the Ogilvie court answered this question with a
qualified “yes.” It held that there are three permissible methods by which the scheduled
rating could be rebutted.
First, the court concluded that the Legislature left unchanged the case law
allowing “the schedule to be rebutted when a party can show a factual error in the
application of a formula or the preparation of the schedule.” (Ogilvie, supra, 197
Cal.App.4th at p. 1273.) Second, the Legislature also left intact the cases, including
LeBoeuf, recognizing “that a scheduled rating has been effectively rebutted . . . when the
injury to the employee impairs his or her rehabilitation, and for that reason, the
employee’s diminished future earning capacity is greater than reflected in the employee’s
scheduled rating.” (Ogilvie, supra, 197 Cal.App.4th at p. 1274.) The court interpreted
LeBoeuf and its progeny as limited in application “to cases where the employee’s
diminished future earnings are directly attributable to the employee’s work-related injury,
and not due to nonindustrial factors.” (Id. at pp. 1274–1275.) Third and finally, the court
held “[a] scheduled rating may be rebutted when a claimant can demonstrate that the
nature or severity of the claimant’s injury is not captured within the sampling of disabled
workers that was used to compute the adjustment factor.” (Id. at p. 1276.)
In Ogilvie, Ogilvie and her employer each submitted estimates of her diminished
future earning capacity from vocational rehabilitation experts who compared her earnings
before the injury with what she could be expected to earn after it. “Each expert
considered his evaluation to be superior to the scheduled rating because he considered
such things as Ogilvie’s education, skills, motivation, local job market conditions, work
3
history, and vocational testing in arriving at Ogilvie’s loss of earning capacity.” (Ogilvie,
supra, 197 Cal.App.4th at p. 1267.) The WCJ agreed that the scheduled rating did not
sufficiently compensate her and set about devising his own methodologies. (Id. at
pp. 1267–1268.) The WCAB created yet another methodology “that it considered
consistent with section 4660, and was intended to replicate the empirically based method
used in the RAND study that established the diminished future earning capacity
adjustment in the rating schedule.” (Id. at p. 1268)
On writ review, this court rejected the WCAB methodology, holding “[n]othing in
the Senate Bill No. 899 authorizes or compels the calculation of an alternative diminished
earning capacity adjustment factor as the WCAB devised in order to resolve Ogilvie’s
claim. When it devised this new methodology, the WCAB acted in excess of its authority.
The means an employee may use to challenge a scheduled rating due to diminished
earning capacity are described in the reported cases that predate Senate Bill No. 899.”
And although the parties’ “vocational experts determined that Ogilvie’s anticipated loss
of future earnings will be greater than reflected in a permanent disability award based on
the rating schedule,” the court remanded for further proceedings because it could “not
determine on this record the degree to which the experts may have taken impermissible
factors into account in reaching their conclusions.” (Ogilvie, supra, 197 Cal.App.4th at
p. 1277.)
II.
Factual and Procedural History
During a period that ended in March 2005, Dahl sustained a cumulative industrial
injury to her neck and right shoulder while employed by the County as a medical records
technician. The injuries resulted in surgeries and scarring. At the time of the injuries,
she was 49 years old and had worked for the county for over 8 years. Dahl has a
bachelor’s degree from CSU Hayward and a felony conviction for possession and sale of
methamphetamine.
4
The parties’ Agreed Medical Examiner (AME), Dr. Mechel Henry, found no basis
for apportionment,4 and the parties agreed that she correctly evaluated the whole person
impairment (WPI) caused by Dahl’s injury in accordance with the AMA Guides as
required by statute. They also agreed that the WPI found by Henry resulted in a rating of
59 percent disability. However, Dahl sought to rebut the scheduled rating through a
vocational expert (Jeffrey Malmuth), and the County sought to counter that with its own
expert (Ira Cohen).
It does not appear Dahl sought to employ either the first rebuttal method approved
in Ogilvie (factual error in application of a formula or preparation of the schedule) or the
third (nature or severity of claimant’s injury not captured within sampling of disabled
workers used to compute the adjustment factor). Thus, the WCJ found “no evidence that
[Dahl’s] impairments or the disability ratings derived from them are either
mathematically incorrect or medically deviant from the injuries enumerated in the Guides
or the rating schedule.” Rather, Dahl sought to invoke the second Ogilvie rebuttal
method. As the WCJ noted, Dahl’s expert and the County’s “produced reports and trial
testimony offering various conflicting percentages of lost earning capacity, leading to
various permanent disability ratings.”
At the evidentiary hearing in March 2011, Malmuth testified that he relied on the
medical opinions of Dr. Henry that Dahl has pain and cervical and upper extremity
limitations but acknowledged that Dahl has some earning capacity. He testified that her
ability to get a job is affected by factors other than her injury. He opined that Dahl
“cannot compete successfully with uninjured job applicants, given the entire constellation
of factors, despite having some earning capacity.”
Malmuth did his own calculations regarding Dahl’s diminished future earning
capacity. He “attempted to establish a DFEC [diminished future earnings capacity] based
4
“ ‘Apportionment is the process employed by the Board to segregate the
residuals of an industrial injury from those attributable to other industrial injuries, or to
nonindustrial factors, in order to fairly allocate the legal responsibility.’ ” (Brodie v.
Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321.)
5
not on applicant’s individual assets and detriments but on those of a theoretical group of
‘similarly situated employees.’ ” He “compared the earning ability of similarly-situated
employees against that of this employee.” “The jobs he studied were based on the
conclusions reached by Dr. Henry.” The limitations involving Dahl’s shoulder led to
limitations in the labor market Malmuth considered. Malmuth testified that Dahl was
earning $25.56 per hour at the time of her injury, which would be between the 75th and
90th percentile for employees in the category he considered similar. Her post-injury
earning capacity would be limited to the 50th percentile of wages or below “because of
her work-related medical condition,” which caused him to use the “average” figure of
$9.13 per hour for her post-injury earning capacity. Malmuth opined that “the most
accurate measure of [Dahl’s] lost earning capacity” was about 87 percent. He considered
Dahl’s education, but opined that jobs that would use her education were precluded by
her injury because of her limitations including her inability to use a computer. On cross-
examination, he testified that she would be helped by vocational rehabilitation, including
voice recognition and other things. He acknowledged that Dahl was a good rehabilitation
candidate and could go to school and get a master’s degree. She could employ vocational
rehabilitation to have access to more of the labor market, and if she did her earning
capacity would rise.
The County’s vocational expert (Cohen) agreed with Malmuth that Dahl “would
benefit from vocational rehabilitation,” get a master’s degree and “raise her earning
capacity.” He disagreed with Malmuth’s calculation of Dahl’s earning capacity. He
criticized Malmuth for treating plaintiff as unskilled, focusing on too few job areas,
failing to account for her skills or aptitude and using too low a percentile regarding her
potential wages. Dahl “could do more jobs than Mr. Malmuth indicates.” Cohen used
the code for a bachelor’s degree in evaluating her earning capacity. He reviewed her
medical and other records, physical limitations, educational history, vocational history,
AME evaluation, deposition, payroll records from the County, performed vocational
testing and interviewed Dahl. Taking into account all of this information and her age,
education, skills, aptitude, the general condition of the labor market and occupations
6
compatible with her profile, he opined that her proportional earnings loss due to the
injury was 30 percent. According to Malmuth, Cohen’s earnings loss percentage would
result in a disability rating of about 77 percent.
The Workers’ Compensation Judge (WCJ) determined that Dahl’s injury caused a
permanent disability of 59 percent pursuant to the Schedule. The WCJ held that, under
Ogilvie, Dahl failed to rebut her diminished future earning capacity factor because she
could not show her injury caused a total loss of future earning capacity or 100 percent
permanent disability. The WCJ did not address whether she would have met her rebuttal
burden if Ogilvie permitted a loss of future earning capacity less than 100 percent.
On appeal from this decision, the WCAB agreed with the WCJ that there was no
evidence to support rebuttal under the first or third Ogilvie methods. However, it rejected
the WCJ’s interpretation of Ogilvie, and held that Dahl could rebut the scheduled rating
by showing the injury impaired her amenability to rehabilitation, even where there was
less than total permanent disability. For this reason, it rescinded the WCJ’s findings and
award and “return[ed] the case to the trial level for development of the record and a new
decision on whether applicant’s rebuttal of the DFEC supports a finding of permanent
disability that is higher than calculated under the PDRS [rating schedule].”
On remand, the WCJ heard additional testimony from the same two vocational
experts on whether the diminished future earning capacity rating properly reflected
Dahl’s future earning capacity. Malmuth again testified that Dahl was a good
rehabilitation candidate. Nonetheless, he attempted to establish Dahl’s future earning
capacity based not on her individual assets and detriments, but on those of a theoretical
group of similarly situated employees. According to Malmuth, this approach precluded
consideration of Dahl’s education. He opined that the scheduled rating understated her
loss of future earning capacity.
Cohen again adopted a more individualized approach, though he declined to
consider Dahl’s felony conviction. He concluded that Dahl’s scheduled rating actually
overstated her loss of future earning capacity.
7
The WCJ found Cohen’s conclusions were now contrary to the law of the case.
The judge reasoned the WCAB had already ruled that Dahl showed she had a greater
diminished earning capacity than reflected in the scheduled rating. The WCJ also found
Malmuth’s method more persuasive than Cohen’s because it eliminated from the
diminished future earning capacity calculation any impermissible factors not stemming
from Dahl’s industrial injury. The WCJ assigned Dahl’s right shoulder impairment a
score of 64 percent, and taking into account her other injuries, assigned Dahl a total
permanent disability of 79 percent. In the belief that the WCAB had already decided the
issue, the WCJ did not consider whether Dahl had shown that her injury impaired her
prospects for vocational rehabilitation, much less whether any such impairment caused
her to suffer a greater loss of future earning capacity as required by Ogilvie. (Ogilvie,
supra, 197 Cal.App.4th at pp. 1274–1275, 1277.)
The County appealed to the WCAB through a petition for reconsideration. The
WCAB affirmed. In doing so, it again concluded that “complete lack of amenability to
vocational rehabilitation” is not “necessary before a LeBoeuf analysis may be properly
applied.” The WCAB also accepted Malmuth’s method for determining Dahl’s
diminished future earning capacity (accepted by the WCJ) of “look[ing] at the effect such
an injury [as Dahl’s] would have upon the DFEC of similarly situated workers” as
consistent with Ogilvie. The WCAB opinion does not discuss what evidence, if any,
including Malmuth’s computations, demonstrated that Dahl’s injury impaired her
amenability to rehabilitation, much less that such impairment was the cause of greater
loss of earning capacity than the scheduled rating reflected.
The County subsequently petitioned for a writ of review, which we granted.
DISCUSSION
The County argues the WCJ and WCAB erred by straying from the scheduled
rating established by the Schedule. The County concedes that, under Ogilvie, Dahl could
rebut her scheduled rating by showing her injury precluded vocational rehabilitation but
contends the WCAB completely ignored evidence Dahl was amenable to rehabilitation.
The County and various amici also take issue with the manner in which the WCAB
8
calculated Dahl’s diminished future earning capacity, as well as her revised rating. We
agree that Dahl failed to rebut her scheduled rating by showing her injury precluded
vocational rehabilitation. Accordingly, we need not and do not reach the other arguments
raised by the County and amici.
Our review is limited to determining whether the WCAB acted “without or in
excess of its powers” and whether its decision was unreasonable, not supported by
substantial evidence or procured by fraud. (§ 5952, subds. (a)–(d).) We may also
determine if findings of fact support the order. (§ 5952, subd. (e).) “The findings and
conclusions of the appeals board on questions of fact are conclusive and final and are not
subject to review.” (§ 5953.) “[U]nless clearly erroneous[,] the WCAB’s interpretation
of the workers’ compensation laws is entitled to great weight.” (Genlyte Group., LLC v.
Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 714.) Nevertheless, issues of
statutory interpretation and questions of law are subject to our independent review, and
we need not defer to the WCAB’s legal determinations where they are contrary to the
plain meaning of the statute or prevailing case law. (See ibid.)
As all parties acknowledge, the resolution of this case turns on Ogilvie. In that
case, the WCAB found a workers’ compensation applicant could rebut his diminished
future earning capacity adjustment by proposing an alternative earning capacity, so long
as the applicant used a numeric formula based on empirical data and findings. (Ogilvie,
supra, 197 Cal.App.4th at p. 1268.) After granting a petition for review, our colleagues
in Division 3 found the WCAB had erred because, under the 2004 amendments to the
workers’ compensation scheme, the statutory rating schedule “is to be ‘prima facie
evidence of the percentage of permanent disability to be attributed to each injury covered
by the schedule’ (§ 4660, subd. (c)).” (Id. at p. 1272.) There was “no indication some
other measure may be substituted for the earning capacity component in order to arrive
at an overall rating most suitable for a particular employee.” (Ibid.) The court suggested
the WCAB’s approach was contrary to the purpose of the amendments, which was to
“ ‘alleviate a perceived crisis in skyrocketing workers’ compensation costs’ ” and to
“ ‘promote consistency, uniformity, and objectivity.’ ” (Id. at pp. 1270–1273.)
9
While the statutory Schedule was presumptively correct, the court held it could be
rebutted using methods recognized prior to the 2004 amendments. (Ogilvie, supra, 197
Cal.App.4th at p. 1273.) Nothing in the statutory text or legislative history indicated the
Legislature intended “ ‘to overthrow [these] long-established principles of law.’ ” (Ibid.)
The court identified three such methods. (Id. at p. 1277.) First, an employee could rebut
the scheduled rating by showing a factual error in the application of a formula or the
preparation of the schedule. (Id. at p. 1273.) Second, the employee could show “the
injury . . . impairs his or her rehabilitation, and for that reason, the employee’s diminished
future earning capacity is greater than reflected in the employee’s scheduled rating.” (Id.
at p. 1274.) Third, in certain rare cases, an employee may show the amalgamation of data
used to arrive at a diminished future earning capacity do not capture the severity of all of
the medical complications of an employee’s work-related injury. (Id. at p. 1275.)
The court derived the second method from our Supreme Court’s opinion in
LeBoeuf, supra, 34 Cal.3d 234. (Ogilvie, supra, 197 Cal.App.4th at p. 1274.) In
LeBoeuf, the claimant, who had been awarded 60 percent permanent disability, moved to
reopen his compensation proceedings based on the Bureau of Rehabilitation’s finding
that he would be unable to return to suitable gainful employment through vocational
rehabilitation services. (LeBoeuf, supra, 34 Cal.3d at pp. 238–240.) The WCJ and
WCAB denied his request. (Id. at p. 240.) The court found this was error, stating: “Just
as retraining may increase a worker’s ability to compete in the labor market, a
determination that he or she cannot be retrained for any suitable gainful employment may
adversely affect a worker’s overall ability to compete. Accordingly, that factor should be
considered in any determination of a permanent disability rating.” (Id. at p. 243.)
In Ogilvie, the court concluded the LeBoeuf approach was limited to cases “where
the employee’s diminished future earnings are directly attributable to the employee’s
work-related injury, and not due to nonindustrial factors such as general economic
conditions, illiteracy, proficiency in speaking English, or an employee’s lack of
education.” (Ogilvie, supra, 197 Cal.App.4th at p. 1275.) “This application of LeBoeuf
hews most closely to an employer’s responsibility . . . to ‘compensate only for such
10
disability or need for treatment as is occupationally related.’ ” (Ibid.) In support, the
court cited to a number of workers’ compensation cases dealing with an employee’s
ability to rehabilitate. (Ibid.) In most of these cases, the WCAB denied claimants’
petitions for reconsideration because their inability to benefit from rehabilitation was due,
at least in part, to pre-existing nonindustrial factors that had nothing to with their
injuries.5
Dahl’s attempt to rebut her disability rating bears little resemblance to any of the
methods described in Ogilvie, including the rebuttal method derived from LeBoeuf. Dahl
did not explain how her injury prevented her from participating in vocational
rehabilitation. In fact, Dahl’s own vocational expert conceded that she was a good
rehabilitation candidate and also stated a discussion of vocational rehabilitation was
“irrelevant.” The gravamen of Dahl’s rebuttal is that her expert’s analysis of the earning
capacity—based on the earnings loss of a group of individuals that the expert identified
as more similarly situated to Dahl than the group identified in the Schedule for someone
with her characteristics—is superior to the method and rating called for by the statute.
This approach is at odds with Ogilvie, which rejected a similar attempt to simply
substitute a vocational expert’s or judge- or board-preferred methodology for the
statutorily prescribed rating system. Ogilvie signaled that it would be a rare case in
which an applicant or employer could rebut a scheduled rating. Yet under the WCAB’s
approach here, claimants would be permitted to rebut their scheduled rating in virtually
all cases where an expert can provide a statistical analysis of a group of individuals he or
she claims is more similarly situated to the applicant than that identified in the Schedule.
As amicus curiae California Association of Joint Powers Authorities points out, the
5
See James v. Workers’ Compensation Appeals Bd. (1986) 51 Cal.Comp.Cases
45 (writ denied); Espinoza v. Workers’ Compensation Appeals Bd. (1994) 59
Cal.Comp.Cases 753 (writ denied); Southern v. Workers’ Compensation Appeals Bd.
(1997) 62 Cal.Comp.Cases 719 (writ denied); Avei v. Workers’ Compensation Appeals
Bd. (2004) 69 Cal.Comp.Cases 434 (writ denied); Linam v. Workers’ Compensation
Appeals Bd. (2007) 72 Cal.Comp.Cases 332 (writ denied).
11
“control groups of ‘similarly situated’ employees” set forth in the Schedule “provide[] the
‘consistency, uniformity and objectivity’ ” that the Legislature sought to promote.
The first step in any LeBoeuf analysis is to determine whether a work-related
injury precludes the claimant from taking advantage of vocational rehabilitation and
participating in the labor force. This necessarily requires an individualized approach.
For example, in Gottschalks v. Workers’ Compensation Appeals Board (2003) 68
Cal.Comp.Cases 1714, 1716 (writ denied), one of the compensation cases cited in
Ogilvie, the WCAB denied an employer’s petition for reconsideration of a 100-percent
disability rating where Oxycontin, a medication used to treat the claimant’s industrial
injury, had a “ ‘severe [e]ffect’ ” on the claimant’s ability to work. The focus was on the
limitations flowing from the claimant’s particular condition, not the earning potential of
similarly situated individuals who might be subject to different limitations. It is this
individualized assessment of whether industrial factors preclude the employee’s
rehabilitation that Ogilvie approved as a method for rebutting the Schedule. The Ogilvie
court did not sanction rebuttal of the statutory Schedule by a competing empirical
methodology—no matter how superior the applicant and her expert claim it may be.
In this case, the County presented evidence Dahl’s injury did not prevent her from
taking advantage of retraining opportunities or finding another job. Dahl’s medical
evaluator has not provided any formal work restrictions. Moreover, Cohen, the County’s
vocational expert, concluded Dahl had the ability to work in selected occupations in the
open labor mark, including sedentary, semi-sedentary and light work positions. Cohen
also found Dahl possessed above-average problem solving, reading, spelling and
arithmetic skills, commensurate with the college degree she earned in 2003, indicating
she has the cognitive ability to perform any of the occupations for which her college
degree prepared her.
Malmuth, Dahl’s vocational expert, did not present contrary evidence. He testified
Dahl had at least some earning capacity, and concluded there was no medical evidence
she could not work eight hours per day. When asked if Dahl was an ideal candidate for
rehabilitation, Malmuth responded that, with some training, including voice recognition
12
and other things, “she would be helped.” Malmuth further testified Dahl performed “very
well” on testing, and that her college education could increase her earning capacity.
Malmuth also opined that, even with her injury, Dahl could perform certain jobs without
retraining.
Nevertheless, Malmuth concluded Dahl is not amenable to rehabilitation because
it would not restore her, or a similarly situated worker, to full pre-injury earning capacity.
But this is precisely what the statutory formula for diminished future earning capacity
factor is intended to capture. Most work-related injuries that qualify an employee for
workers’ compensation benefits reduce earning potential to some degree. Thus, allowing
a claimant to rebut his or her permanent disability rating through a showing of some
diminished future earning capacity would render the statutory formula virtually
meaningless. Nothing in Ogilvie or any of the case law on which it relies suggests
departure from the statutory rating system is permissible whenever an employee cannot
be returned to his or her pre-injury earning capacity.
Based on this record, there was no basis for the WCJ or the WCAB to conclude
Dahl had rebutted her scheduled diminished future earning capacity by showing she was
not amenable to vocational rehabilitation. In fact, it appears no such finding was made in
the proceedings below. The WCJ initially held Dahl could not rebut her scheduled rating
because she failed to show her injury resulted in a total loss of earning capacity. On a
petition for review, the WCAB disagreed that rebuttal based on a claimant’s ability to
rehabilitate was only available in cases involving 100-percent total permanent disability.
The WCAB accepted Dahl’s contention “that a LeBoeuf type of analysis may be properly
applied . . . when it is shown that the injury impairs the employee’s rehabilitation, as in
this case.” However, the WCAB did not refer to any specific evidence that would
support such a finding as to Dahl’s rehabilitation prospects. On remand, the WCJ held
the WCAB’s decision after reconsideration conclusively established Dahl had rebutted
the scheduled rating but did not identify any evidence showing Dahl’s injuries precluded
rehabilitation. We disagree.
13
The WCJ relied on the language, which we have italicized, from the following
paragraph of the WCAB decision: “Application of a LeBoeuf type of analysis in cases of
partial permanent disability requires expert opinion on the effect of the injury’s
impairment on the worker’s amenability to rehabilitation and the effect of that on DFEC.
Such an analysis can be done even where there is less than total permanent disability, as
in this case where the employee has rebutted the PDRS by showing that she will have a
greater DFEC than reflected in the PDRS rating.” This language, while less than clear,
does not reflect a finding that Dahl had already met her burden; it indicates only that the
WCAB viewed it as permissible for her to meet her burden without claiming to be 100-
percent disabled. Indeed, as indicated above, the WCAB remanded for further
development of the record to ascertain whether Dahl’s rebuttal showing supported a
finding of disability greater than her scheduled disability—i.e., whether she had satisfied
the second method approved in Ogilvie for rebutting her scheduled rating. (See Ogilvie,
supra, 197 Cal.App.4th at p. 1277 [“we conclude that an employee may challenge the
presumptive scheduled percentage of permanent disability prescribed to an injury . . . by
demonstrating that due to industrial injury the employee is not amenable to rehabilitation
and therefore has suffered a greater loss of future earning capacity than reflected in the
scheduled rating”].) The WCAB thus remanded the case not because it concluded Dahl
had already made that showing, but to allow the WCJ to determine whether she had done
so.
We are skeptical of WCAB’s conclusion that an employee may invoke the second
Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-
percent permanent disability.6 However, we need not decide this issue since the County
6
For the same reason as the rule advocated by Malmuth allowing rebuttal
whenever an employee shows she cannot be expected to earn the same as she did prior to
injury, a partial impairment rule would allow for rebuttal in a wide swath of cases. Many
injured employees cannot return to the precise position they held before their injury or to
an equally remunerative one. Ogilvie does not appear to contemplate rebuttal of the
scheduled rating in this circumstance, since the Schedule’s formula for determining
diminished future earning capacity takes into account such limitations. Notably, the two
14
did not seek a writ from the WCAB decision adopting the partial impairment rule. In any
event, even if an employee’s ability to rehabilitate need only be impaired (and not
eliminated) in order to rebut the schedule, Dahl failed to make such a showing here. As
discussed above, both Dahl and the County’s rehabilitation experts agreed Dahl was a
good rehabilitation candidate, and the evidence suggests she can increase her earning
potential through retraining. There is no evidence that the injury even limited her
rehabilitation prospects.
Dahl argues she successfully rebutted the scheduled rating because the state
ceased providing a vocational rehabilitation program for injured workers as of January 1,
2003. We disagree. As the County points out, section 4658.5 does provide for workers’
compensation vouchers that may be used to pay tuition and other expenses required for
retraining. Specifically, the statute provides that an injured employee who does not
return to work for the employer within 60 days of the termination of temporary disability
shall be eligible for a voucher for education-related retraining or skill enhancement at a
state-approved or accredited school. (§ 4658.5, subd. (b).) For disability awards between
50 and 99 percent, the voucher may be up to $10,000. (§ 4658.5, subd. (b)(4).) The
applicant in Ogilvie was presumably eligible for identical benefits, as this provision was
last amended in 2003. Moreover, Ogilvie holds claimants must show they are not
amenable to rehabilitation due to their industrial injury, not due to extraneous factors,
such as the cessation of certain state-sponsored rehabilitation benefits. (Ogilvie, supra,
197 Cal.App.4th at pp. 1274–1275.) To hold otherwise would mean every employee
could now rebut their scheduled rating using a LeBoeuf analysis, turning a limited
exception into the general rule. There is no indication Ogilvie intended the second
rebuttal method to be so broad and all-encompassing.
cases cited by Ogilvie which found claimants were unable to rehabilitate involved injuries
that rendered the claimants unable to return to any type of gainful employment. (See
LeBoeuf, supra, 34 Cal.3d at pp. 239–240; Gottschalks v. Workers’ Compensation
Appeals Bd., supra, 68 Cal.Comp.Cases at p.1716.)
15
In sum, we find WCAB’s approach in this case flies in the face of Ogilvie and the
2004 amendments to the workers’ compensation scheme. Under the 2004 amendments, a
claimant’s scheduled rating is presumptively correct. Ogilvie confirmed the Legislature
meant what it said, and that claimants may not rebut their disability rating merely by
offering an alternative calculation of their diminished future earning capacity. While
Ogilvie found the 2004 amendments did not overthrow certain long-held approaches to
calculating earning capacity, it clearly did not intend those approaches to be construed so
broadly as to return us to the ad-hoc decision making that prevailed prior to 2004.
Following the WCAB’s approach in this case would do just that. Claimants could rebut
their presumptively correct disability rating merely by presenting an analysis that shows a
greater diminished future earning capacity than that determined by applying the
Schedule. As Ogilvie makes clear, this approach is no longer permissible.
DISPOSITION
The decision of the WCAB is annulled. We remand for further proceedings
consistent with this decision.
16
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
17
Contra Costa County v. Workers’ Compensation Appeals Board (Dahl) (A141046)
Counsel:
Thomas, Lyding, Cartier, & Gaus, Mark A. Cartier for Petitioner.
Lenahan, Lee, Slater & Pearse and Tiffany D. Corona for California State Association of
Counties–Excess Insurance Authority as Amicus Curiae on behalf of Petitioner.
Finnegan, Marks, Theofel & Desmond and Ellen Sims Langille for California Chamber
of Commerce as Amicus Curiae on behalf of Petitioner.
Law Offices of Allweiss & McMurtry and Michael A. Marks for California Workers’
Compensation Institute as Amicus Curiae on behalf of Petitioner.
Mullen & Filippi and Edward L. Hummer for California Association of Joint Powers
Authorities as Amicus Curiae on behalf of Petitioner.
Department of Industrial Relations/Workers’ Compensation Appeals Board, Neil P.
Sullivan and James T. Losee for Respondent Workers’ Compensation Appeals Board.
Boxer & Gerson, Arjuna Farnsworth for Respondent Doreen Dahl.
Gearheart & Otis, Mark E. Gearheart for California Applicants’ Attorneys Association as
Amicus Curiae on behalf of Respondent Doreen Dahl.
18