Rebutting the Pdrs With Vocational Evidence: Where Are We Now?

• Jurisdiction: California,United States
• Author: MARK GEARHEART, ESQ.
• Publication year: 2017
• Citation: Vol. 30 No. 3

Rebutting the PDRS with Vocational Evidence: Where Are We Now?

MARK GEARHEART, ESQ.

Pleasant Hill, California

As a preliminary matter, it is important to distinguish between rebutting the Permanent Disability Rating Schedule (PDRS) itself and proving permanent total disability "in accordance with the fact" under Labor Code section 4662. The latter is not rebutting the schedule; it is a separate method to prove permanent total disability. This article focuses on the use of vocational evidence to rebut the PDRS.

Although the Labor Code has long provided that the rating schedule is rebuttable (see Labor Code §§4660, 4660.1), the Labor Code does not specify any method for that rebuttal. The courts have developed the methodology through case law.

The LeBoeuf Case

In LeBoeuf v. WCAB (1983) 48 Cal.Comp.Cases 587, the California Supreme Court held that the permanent disability rating on which an award is based should accurately reflect both the permanent medical and vocational disabilities (48 Cal.Comp.Cases at 594).

The court further determined that where an injured worker is not able to benefit from vocational rehabilitation benefits, this factor must be taken into account in determining the worker's permanent disability rating. An award that fails to reflect the preclusion from vocational retraining is not accurate. The matter was remanded for further proceedings. (The parties eventually settled the matter.)

The important lessons from LeBoeuf are (1) that the vocational as well as the medical factors must be considered in determining permanent disability, and (2) that where the injury impairs the injured worker's ability to benefit from vocational rehabilitation, this should be taken into account in determining the permanent disability.

Some have argued that LeBoeuf applies only in permanent total disability cases, but nothing in the opinion indicates that is the case. On the contrary, in Chevron USA v. WCAB (Arnold) (2000) 65 Cal.Comp.Cases 922, for example, the applicant had demonstrated with vocational evidence that the percentage of the labor market he was precluded from due to the injury was greater than the scheduled disability rating. The Board adopted the percentage labor market preclusion as the disability rating, and the Court of Appeal denied review. LeBoeuf, then, has been used to rebut the schedule in less than permanent disability cases.

The Ogilvie Case

In Ogilvie v. WCAB (2011) 76 Cal.Comp.Cases 624, the Court of Appeal reiterated the longstanding rule that in determining the degree of permanent disability, the Board must consider the opinions of vocational rehabilitation specialists concerning the employee's ability to compete in an open labor market. The Ogilvie court identified at least three ways in which a party may rebut the PDRS. Ogilvie, supra, at 632-634.

The first of these methods consists of a party showing a factual error in the application of a formula or the preparation of the schedule. The Ogilvie court noted the problem of developing the diminished future earning capacity (DFEC) adjustment factor in the 2005 PDRS based on a RAND study of an older schedule without a crosswalk study and noted that proving an error in the application of a formula or preparation of the schedule was more than a theoretical possibility.

Using the second method for rebutting the PDRS, the injured worker shows that the injury

impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the scheduled rating.

The court described this as the rule expressed in LeBoeuf. (See Ogilvie, supra, at 633.) It is important to note that the court in Ogilvie did not say that the employee had to be unable to participate in vocational rehabilitation, but, rather, that the injury impaired the employee's amenability to benefit from vocational rehabilitation.

The third method is to demonstrate that the amalgamation of data used to arrive at the DFEC adjustment factor does not capture the severity of all of the medical complications of the employee's work-related injury (Ogilvie, supra, at 634).

The Dahl Case

In Contra Costa County v. WCAB (Dahl) (2015) 80 Cal. Comp.Cases 1119, the Court of Appeal again addressed the issue of vocational rebuttal of the PDRS. The holding in Dahl was that in order to utilize the second method in Ogilvie, the employee had to demonstrate how the injury impaired their amenability to vocational rehabilitation. The court expressed confusion about whether the employee had to be unable to benefit at all from vocational rehabilitation or whether impaired amenability was adequate (notwithstanding the fact that the Ogilvie court had been clear that impaired amenability was the standard). In any event, the Dahl court held that absent any evidence in the record regarding the applicant's amenability or impaired amenability and absent any finding by the trial judge on that issue, the Board could not utilize Ogilvie's method 2. An award based on that method was vacated, and the matter was remanded for further development of the record. Dahl is essentially a substantial evidence case.

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Current Methods for Vocational Rebuttal of the PDRS The LeBoeuf Method

LeBoeuf has never been overruled; in fact, Ogilvie affirmed and expanded upon it. It is still possible to prove that the injury caused a diminished labor market and to argue that the percentage-diminished labor market should become the new rating. Both LeBoeuf and Ogilvie endorse this...