Happy Wednesday, dear readers!
Have you ever thought about the fact that if you’re a camel, every day is hump day?
Anywho, your humble blogger brings you a wonderful case today from the Oakland Board (or, as the kids say “straight outta Oakland”).
The case was excellently discussed by the Lexis WC community here. In Mesanovic v. Specialty Termite, applicant sought to rebut the PDRS with the same type of report that was so masterfully deconstructed and discarded in the Dalh decision by the Court of Appeal. The vocational rehabilitation report, while acknowledging that the applicant was amenable to rehabilitation,
The WCJ rejected applicant’s theory that the permanent disability rating schedule should be rebutted “because applicant’s future earning capacity had significantly been impacted by his work related injury.” The WCJ noted that applicant had a sporadic work history, ranging in hourly wages from $8.75 to $22, but had never held a job for more than a year. Under the rehab expert’s calculations, the applicant could have gotten a job paying $19 per hour. So, the WCJ noted that there was no loss of earning capacity.
The WCJ also noted that the expert does not explain why the applicant could not retrain and get a new job or new career, the age at the time of injury being just 25. After all, isn’t the burden of rebuttal on the party seeking to do the rebutting?
Of interest is that the trial in this case was in June and the decision was issued in August, so well before the Dahl opinion issued in September.
The WCAB denied applicant’s petition for reconsideration of this finding. The panel opinion notes that on page 11 of the expert’s report, he notes that because post-injury jobs have been identified that the applicant can perform, “a discussion of rehabilitation” is rendered “irrelevant.” As your humble blogger call tell you from observing the oral arguments in Dahl, the expert’s labeling a discussion of rehabilitation as “irrelevant” was not well received by the Court of Appeal.
The commissioners, now with the benefit of Dahl’s guidance, were able to clearly rebuff applicant’s efforts to rebut the PDRS. The first step in the analysis is and must be that the injured worker would not be amenable to rehabilitation. And, more importantly, being amenable to rehabilitation DOES NOT mean that rehabilitation would restore applicant to a pre-injury condition – that’s what the permanent disability benefits are for in the first place, to bridge the gap between pre- and post injury status.
What we’re seeing with this case is Dahl mopping up a mess that existed before Dahl – the regular efforts of applicants to increase the level of PD through such expert reports should taper off because of the rock of Dahl from one end and the hard place of Labor Code section 4660.1, which completely eliminates diminished future earnings capacity from the rating equation.
All in all, dear readers, good news!