Home > Uncategorized > Applicant Fails to Rebut DFEC

Applicant Fails to Rebut DFEC

 

We’ve all had to deal with our share of goose bumps, frustration, anger, confusion, and an endless list of other emotions and reactions when the curse-word “Ogilvie” comes up.  The case of Wanda Ogilvie v. Workers’ Compensation Appeals Board (2011), unfortunately, held that the diminished future earning capacity (“DFEC”) element of a rating calculation can be rebutted, in theory by either party but in practice by the applicant.

Ogilvie, in its third decision at this point, allowed for three methods of rebutting the DFEC: (1) showing a factual error in the application of a formula or the preparation of the schedule; (2) showing that other industrial factors inhibit rehabilitation and result in a greater diminishment of future earning capacity than reflected by the DFEC; or (3) when the amalgamation of data used to arrive at a diminished future earning capacity adjustment may not capture the severity of all of the medical complications of an employee’s work-related injury.

Recently the Court of Appeal denied applicant’s petition for a writ of review in the case of Valentina Rodrigues v. WCAB, where applicant attempted and failed to rebut the DFEC.  Ms. Rodrigues worked for the County of Sacramento as a custodian, and sustained injury to a laundry-list of body parts in July of 2007.

The matter eventually proceeded to trial, where the workers’ compensation Judge held that Ms. Rodrigues failed to carry her burden in rebutting the DFEC in any of the three methods provided by the Court of Appeal.

Nothing in the medical reporting supported the contention that applicant’s medical complications were anything but normal and those typically sampled in creating the DFEC.  Applicant’s vocational rehabilitation expert also failed to provide a full work up of applicant’s earning capacity, and only provided an estimate.

The WCAB denied reconsideration and the Court of Appeal denied review.

Note, dear readers, that this case was not sent back down to “develop the record” and allow applicant to get her medical and voc-rehab ducks in a row.  Furthermore, the standard set out by the Court of Appeal in Ogilvie III was used to limit defendant’s liability in this case.  As noted in this post, it appears that “developing the record” may be disfavored.

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