Workers can't rebut scheduled rating by factoring in education, illiteracy

In California, an injured worker can challenge the presumptive scheduled percentage of permanent disability by showing a factual error in the calculation, the omission of medical complications aggravating the disability, or the employee is not amenable to rehabilitation.

Case name: Ogilvie v. Workers' Compensation Appeals Board, No. A126344 (Cal. Ct. App. 07/19/11).

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Ruling: The California Court of Appeal held that a driver could not rebut her disability rating by showing that her loss of future earnings was greater than the earning capacity adjustment that would apply to her scheduled rating due to nonindustrial factors.

What it means: In California, an injured worker can challenge the presumptive scheduled percentage of permanent disability by showing a factual error in the calculation, the omission of medical complications aggravating the disability, or the employee is not amenable to rehabilitation.

Summary: A bus driver's bus broke down and had to be towed to a repair yard. The driver rode inside the bus as it was being towed. She was jostled about during the ride and injured her back and knee. She never returned to work. She sought workers' compensation benefits. She was assigned a 28 percent permanent disability rating, which she sought to rebut using a vocational rehabilitation expert. The California Court of Appeal held that the driver could not rebut her disability rating by showing that her loss of future earnings was greater than the earning capacity adjustment that would apply to her scheduled rating due to nonindustrial factors. The court sent the case back to the Workers' Compensation Appeals Board to determine whether the vocational experts took impermissible factors into account in reaching their conclusions.

The court explained that the rating schedule is rebuttable if it does not accurately reflect the worker's true diminished earning capacity due to a work-related injury. An injured worker can challenge the presumptive scheduled percentage of permanent disability by showing a factual error in the calculation, the omission of medical complications aggravating the disability, or the employee is not amenable to rehabilitation. Nonindustrial factors such as general economic conditions, illiteracy, proficiency to speak English, and education could not be considered.

Read more at the WorkersComp Forum homepage.

September 27, 2011

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