Alright, readers – here we are. It’s Wednesday, your humble blogger has narrowly escaped another effort at disbarment, and we’ve got another blog post to muddle through!
Do you guys remember that Ogilvie case? That’s the one that said that if the industrial injury impacts the injured worker’s future earning capacity in a different way than what is offered by the rating schedule, one could, possibly, rebut the presumption that the rating schedule is correct? (I know there’s more to it than that, but that’s the gist, no?)
Ok, so the applicants’ attorneys took the Ogilvie case and started hiring hacks and crooks to say that everyone who suffers a paper-cut is 100% permanently disabled. On occasion, some vocational rehabilitation reports even went into such specifics as the injured worker’s education, skills, impact of industrial injury, and the availability of work with only a minimal use of “copy-paste”.
Unanswered questions persisted – does the rebutted DFEC equal the PD amount (so that a 50% diminished future earning capacity equals 50% PD)? Or, perhaps, that a 50% post-rebuttal DFEC is just a multiplier for the whole person impairment?
Well, fortunately, we got the Dahl decision in 2015, in which the Court of Appeal put a stop to all the nonsense – if you’re unfamiliar with the Dahl case, a very humble and witty summary is available here.
So, the ripple effects of both Dahl and Ogilvie continue. Recently, the Court of Appeal denied review in the case of Edwards v. Forbes Security Co.
Right off the bat, I would point out that the Edwards case involves a 2011 injury – since the DFEC element to rating PD was eliminated by SB-863 for post 1/1/13 injuries, presumably, both Ogilvie and Dahl are not relevant for post 1/1/13 cases – but we’ll see!
In any case, applicant claimed that the permanent disability assigned to him by the AME was insufficient, because applicant’s poor education and history of unskilled work made him unamenable to rehabilitation.
The WCJ disagreed – relying on Ogilvie, the WCJ ruled that rebuttal is only warranted when the industrial injury makes an injured worker unamenable to rehabilitation. The fact that applicant’s non-industrial conditions and history precluded rehabilitation did not warrant a rebuttal.
Further, I would remind my dear readers of the language of Ogilvie III which specifically held that “nonindustrial factor such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education” cannot be used to show that an injured worker is not amenable to rehabilitation.
Applicant’s petition for reconsideration (and the following petition for writ of review) argued that the WCJ misinterpreted the Dahl decision, to which the WCJ replied that Dahls was “a four-letter word which does not appear anywhere in [his] Opinion” and rightly so – one need not discuss the merits or application of Dahl to read the very plain language of the Ogilvie decision.
In any case, the WCAB adopted the WCJ’s opinion and the Court of Appeal denied review.
However, parties can rely on Dahl to bolster the findings of the WCJ. As my beloved readers will recall, the Dahl Court dealt with a vocational rehabilitation expert who used a hypothetical class of workers who had nothing to do with the applicant and also claimed that amenability to rehabilitation is irrelevant to his determinations when that is precisely what Ogilvie called upon practitioners to discuss!
Another takeaway from this case is a friendly reminder for us all that applicant carries the burden of rebuttal and must show why applicant is entitled to retire to the Bahamas. And, frankly, if applicant can carry so heavy a burden, that shows that he or she has a tremendous lifting capacity which negates any claims of injury (just a joke, dear readers…)
Alright, dear readers – back to the grind!