The California Supreme Court in late October rejected San Francisco’s petition for review of the First District Court of Appeal’s decision in the Ogilvie case.
The First District’s decision supports a decision by the Workers’ Compensation Appeals Board that the diminished future earnings capacity adjustment in the calculation of permanent disability awards could be rebutted.
In July the First District annulled the award by the WCAB in the case of Ogilvie vs. WCAB and sent the case back to the appeals board for further review.
In 2009 in the Ogilvie case, WCAB decided for the first time that injured workers could challenge the schedule used in adjusting workers’ compensation awards so that they reflect the injured worker’s diminished capacity for future employment. Before workers were not allowed to challenge the payment schedule or how it was applied.
After the WCAB 2009 decision, experts warned that a decision upholding the right of claims applicants to challenge the permanent disability schedules could add $800 million annually to the costs of workers’ compensation insurers.
The Supreme Court’s rejection for review was a blow to opponents of the First District decision.
“That’s bad,” said Don Barthel, a partner in Bradford and Barthel LLP, who and assisted on the Ogilvie arguments. “But that doesn’t mean that’s the end of things.”
Barthel said there are so many cases like this one that another district court of appeals is bound to pick one up and issue a differing decision.
“I have every expectation that there will be splits on this issue in the various courts of appeal,” he said. “This is not the end of the Ogilvie issue. The case is done, but the issue could be taken up by the Supreme Court. They can’t resist split decisions.”