Workers Comp Zone


The California Supreme Court has now rebuffed the City and County of San Francisco’s bid to overturn the Ogilvie case.

In a move widely anticipated, the Supreme Court refused to grant review.

With S.F. City Attorney Dennis Herrera’s mayoral campaign stumbling and Herrera’s complex litigation deputy attorney Danny Chou’s efforts in Ogilvie being rebuffed, it was not a good day for the City Attorney’s office in the city by the bay.

So unless and until another Court of Appeals panel renders a decision that conflicts with the decision of the California Court of Appeals First District, that court’s Ogilvie decision is the law. The case heads back to the WCAB trial level, however, and it’s quite possible that we will see the issue eventually go back up to the WCAB en banc and through the appellate process again.

That could take years.

Meanwhile, the City and County of S.F. may have done a favor to applicants by taking the issue to the California Supreme Court, giving the issue a patina of finality for the forseeable future.

These developments are a cause for celebration for applicant attorneys and a bitter pill for defendants.

Applicant attorneys hail the decision of the First District in Ogilvie which seems to open several broad doors to rebutting the PD rating schedule.
And that’s in addition to language in the 6th District Court of Appeals Guzman decision which allows rebuttal of the strict American Medical Association Guidelines impairment rating in some instances.

We’ll now enter a period where-in some cases- vocational experts formulate rebuttal arguments to the rating.

Exactly how this is permissibly done, and under what circumstances, will be the fight.

Is it the end percentage of the rating string which is being rebutted? Or the “FEC factor”?

Is it true that there is no meaningful difference between “inability to compete in the open labor market” and lack of an “earning capacity”?

Where does Labor Code 4662 language about “permanent total disability according to fact” fit into all of this?

And what methodologies used by vocational experts will pass muster?
How will similarly situated workers be identified, and what periods of wage loss will be compared?

The costs of these evaluations-who pays and when-will continue to be an issue. As will the costs to the system if litigation costs spiral out of control.

But one thing is sure. There are some injured workers out there who will receive awards that will be positively affected by the decision.

Again, the California courts have interpreted the law in a way to allow some flexibility rather than in a cookie cutter justice manner.

Stay tuned.

Julius Young

Category: Political developments