View this article online: https://www.insurancejournal.com/news/west/2011/10/26/221790.htm
The California Supreme Court on Wednesday rejected San Francisco’s petition for review on Wednesday 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.
On July 29, 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.
Prior to that ruling, 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 through increased awards and increased numbers of lengthy challenges.
The Supreme Court’s rejection for review was a blow to opponents of the First District decision, but while the case may be at an end, the issue is not, they said.
“That’s bad,” said Don Barthel, a partner in Bradford and Barthel LLP, who and assisted on the Olgilvie arguments. “But that doesn’t mean that’s the end of things.”
Barthel, who is also involved with the state’s other major workers’ comp case, Almarez/Guzman, 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.”
He added, “There are probably thousands of Ogilvie-like cases bubbling through WCAB district offices at this very moment. Once one district court of appeal goes against another, then you have a split. You probably double, triple, or quadruple the chances of it being granted a review by the Supreme Court.”