“He’s Baaaaack…” Like something from an 80’s horror flick, what we thought was dead and gone is back….with vengeance.

With the sun-setting of the vocational rehabilitation benefit, we all though we watched the provisions and effects of the LeBoeuf case fade with it. Never again would the defense attorney and claims examiner be haunted by the notion of permanent total disability resulting from an inability to rehabilitate back into the workforce. Or so we thought…

There was a second installment: Ogilvie. This case single-handedly revitalized the notion that a claimant could potentially establish 100% permanent disability by rebutting the presumption of the Permanent Disability Rating Schedule (PDRS). This could be done in any of 3 ways:

1. By demonstrating a factual error in the application of a formula or the preparation of the schedule;
2. By showing that medical complications of the injury are not fully captured within the sampling of disabled workers used to compute the scheduled FEC adjustment factor;
3. By demonstrating an effect of the injury on the employee’s rehabilitation and future ability to compete in the open labor market – noting that “diminished future earning capacity” was analogous to “ability to compete in the open labor market.”

In the wake of Ogilvie, it was understood and accepted that in limited circumstances, a claimant could again establish 100% permanent disability by such a demonstration and PDRS rebuttal.

Just when you thought it was safe, now comes the 3rd installment of the trilogy: Dahl v. Contra Costa County (ADJ 1310387). Dahl is a recent panel decision allowing for a LeBoeuf analysis even where the facts to not support a case for total permanent disability.

In Dahl, the employee had a PD rating of 59% under the strict use of the PDRS and scheduled FEC value. However, Dahl contended she should be awarded a higher rating because her diminished earning capacity was actually higher than contemplated by the scheduled FEC adjustment factor. While this argument was historically used in cases to show total permanent disability, the WCAB commissioners accepted the position that “a LeBoeuf type of analysis may be properly applied in a case involving less than 100% permanent disability.”

The WCAB Commissioners have provided the road-map for rebutting the PDRS citing Commissioner Caplcane’s Dissent in Ogilvie:

“The method that I propose is comprehensive, analytically sound and operatively simple. It would require vocational or other experts to estimate the injured employee’s post-injury earning capacity based upon medical opinions evaluating permanent impairments and earning capacity had the employee not suffered the industrial injury, both to be determined from the permanent and stationary date through the employee’s projected years in the work force. Such expert testimony is common in marriage dissolution cases, permanent injury cases and employment cases.” [Ogilvie v. City and County of San Francisco (2009) 74 Cal.Comp.Cases 248]

This case is not a novel concept and we have already seen several attorneys employing the use of evidence to rebut the scheduled DFEC value in cases of less than 100% disability. The use of Vocational Rehabilitation experts appears to be on the rise as the method of choice for PDRS rebuttal and the cost of this expense will likely be asserted a med-legal expense subject to reimbursement under Labor Code section 5811. Stay tuned.