Great news, dear readers!

Dahl, has been struck down!  The court of appeal, with a less-than-gentle manner, has cut short the hopes of many applicants’ attorneys hoping to “rebut” the Permanent Disability Rating Schedule and quickly inflate permanent disability.

Recently, the Court of Appeal issued its opinion in the matter of Contra Costa County v. WCAB/Dahl, rejecting the method used by applicant, her vocational rehabilitation expert, the WCJ and the WCAB.  If you’re in a rush, the basic holding is this: to rebut the PDRS, the injured worker must show that industrial injuries sustained in the instant case render the injured worker incapable of rehabilitation.  Further, although this is somewhat dicta, the Court of Appeal very strongly implied that it may be inappropriate to attempt to rebut the PDRS in cases where the alternative rating would result in less than permanent total disability.

Let’s back up real quick to lay the framework: back in 1983, the California Supreme Court held that an injured worker could rebut the permanent disability rating schedule by showing that he or she was not amenable to rehabilitation, and that the diminished future earnings capacity resulting from the industrial injury is greater than that which was accounted for in the PDRS.  The LeBoeuf court specifically held that the DFEC must be directly attributable to the employee’s work-related injury, and not to nonindustrial factors, such as the economy, language difficulties, or lack of education.

Fast forward to 2011, where the Court of Appeals holds that the PDRS can be rebutted if the injured worker’s injury impairs his or her rehabilitation, thereby causing a greater diminishment in the future earnings capacity.  Unfortunately, there wasn’t much guidance other than that, and litigation ensued on many fronts.

In the case of Dahl, the orthopedic injuries resulted in 59% permanent disability ($75,515), but the vocational rehabilitation expert’s opinions resulted in an award of 79% ($155,857.50 and a life pension of $73.44 per week, subject to COLA).  The methodology in this case was a hypothetical group of similarly situated workers (generated, somehow, by the vocational rehabilitation expert) and a determination that there would be a drastic drop in earnings.

The Court of Appeal rejected this approach, instead interpreting the Ogilvie decision to require a showing that the industrial factors of the injury (alone) prevented rehabilitation.  This was not shown to be the case in the Dahl matter.  Furthermore, the court specifically ruled that a rebuttal of the PDRS fails if it is based solely on the theory that the vocational rehabilitation expert has a “better” way of more accurately calculating the DFEC.

The Court of Appeal further rejected the idea that the failure of vocational rehabilitation to restore an injured worker to pre-injury earning capacity could rebut the PDRS.

Finally, the Court of Appeal, in dicta, noted that it was “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.”

So, what’s the take-away from this?  Let’s say you’re faced with an applicant’s attempt to rebut the schedule.  What about the industrial injury makes applicant not amenable to rehabilitation?  We’re living in the cyber-age people!  You can make a living swinging a hammer, driving a car, or at your computer.  Does immigration status impair the injured worker’s ability to earn money?  What about the language skills?  Is the fact that the injured worker coming to the table with a 3rd grade education or is illiterate making rehabilitation harder or impossible?

What’s more – what if the employer can offer work – regular, modified, or alternative duties – so long as the injured worker can legally accept the job?  Doesn’t that disprove any diminished future earnings?

Your humble blogger doesn’t expect the applicants’ bar to so easily abandon the potential goldmine here, and we will likely see more litigation on this front.  For now, though, dear readers, it looks like a win.