A recent decision in Bowden v. Sunray Termite Control has indicated a possible decision by the WCAB to create an informal stay on Ogilvie claims pending the final appellate decision in the main case.
In this non-binding panel decision, issued on December 22, 2009, the WCAB deferred the diminished future earnings capacity issue until after the resolution of the Ogilvie appellate case. The parties did stipulate to the 44% Ogilvie and 26% non-Ogilvie ratings. The WCAB granted the 26% rating pending the outcome of the Ogilvie case.
Although this case is limited in its holding and has no binding affect on other cases pending at this time, the WCAB had made similar actions in prior cases such as Brodie and Welcher.
In terms of defense, this presents an argument to help get lower settlements from the applicant’s attorney in order to prevent possible long delays in getting a final decision on permanent impairment. Additionally the Judges at the WCAB may be willing to embrace this argument as a way of avoiding the eventual Petition for Reconsideration from the losing party in the Ogilvie argument cases.