California Court of Appeal Rejects Injured Employee’s Attempt to Rebut Her Designated Disability Score

In a recent case, the California Court of Appeal addressed the process of attempting to change, or rebut, an assigned statutory rating of disability.  The California Permanent Disability Rating Schedule assesses an individual’s degree of permanent disability. There are four components of the Schedule:  (1) the type of injury; (2) the applicant’s occupation; (3) the applicant’s age; and (4) the applicant’s decreased future earning capacity.  Consistency and objectivity are promoted through the Schedule because it helps to ascertain indemnity benefits.

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In this case, an injured worker claimed that she would have a harder time rehabilitating and therefore face a greater loss of future earnings than the Schedule set forth. The court reviewed the appropriate methods for rebutting the Schedule’s rating and assessed her allegations.

The scheduled rating can be rebutted in three ways. First, a party can show a factual error in the application of the formula. Second, the injured employee’s rehabilitation may have been impaired, and their decreased future earning capacity may be greater than shown in the rating. Third, a rating can be rebutted when a claimant shows that the nature or severity of their injury is not captured in the sampling of disabled workers used to determine the adjustment factor.

Here, the claimant, Doreen Dahl, injured her neck and right shoulder in the course and scope of her work for Contra Costa County as a technician. Ms. Dahl was 49 years old at the time of her injuries and had worked for the county for over eight years. Ms. Dahl graduated from CSU Hayward and had a felony conviction for possession and sale of methamphetamine.

Dr. Mechel Henry evaluated Ms. Dahl, and her whole person impairment (WPI) led to a rating of 59 percent disability. Ms. Dahl wanted to rebut the scheduled rating with the help of a vocational expert, Jeffrey Malmuth. The County countered with their own expert, Ira Cohen.

Ms. Dahl’s efforts to rebut the impairment rating were made through the second rebuttal method, using testimony and reports to show that her lost earning capacity was greater than that of her rating, which was 59 percent according to the Schedule.

On appeal, the Workers’ Compensation Appeal Board found that Ms. Dahl could rebut the Schedule rating if she showed that the injury impaired her amenability to rehabilitation, without causing a total and permanent disability.

The case returned to the Workers’ Compensation Judge, who then assigned Ms. Dahl a total and permanent disability of 79 percent. This number was based on the opinion of Ms. Dahl’s vocational expert, who stated that his own method for calculating Ms. Dahl’s future earning capacity led to a higher rating than the Schedule.

The County appealed to the Workers’ Compensation Appeal Board, and the Board accepted Mr. Malmuth’s method for calculating the diminished future earning capacity. The County then petitioned for review. On appeal, the County argued that the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board erred in straying from the scheduled rating set forth in the Schedule.

The appeals court addressed the Supreme Court case of LeBoeuf v. Workers’ Compensation Appeals Board, since Ms. Dahl contended that an employee who is unable to be retrained for suitable employment may be adversely affected in their ability to compete. Here, the court found that Ms. Dahl’s efforts to rebut her disability did not resemble those methods in LeBoeuf. Her main claim was that her analysis of earning capacity was superior to the method and rating in the statute. The court stated that an expert cannot be relied upon to provide a different analysis of those more similarly situated to the applicant.

Instead, the court stated that first it must be determined if a work-related injury precludes the claimant from taking advantage of vocational rehabilitation and participating in the workforce. The focus is the claimant’s limitations and not the earning potential of others.

Here, the County set forth evidence that Ms. Dahl’s injury did not prevent her from retaining opportunities. Her medical evaluator did not provide formal work restrictions.  While Mr. Malmuth concluded that Ms. Dahl is not amenable to rehabilitation because she would not be restored to her full pre-injury earning capacity, the court stated that this is the purpose of the statutory formula for diminished future earning capacity.

The court stated that the lower courts had no basis to conclude that Ms. Dahl rebutted her scheduled diminished future earning capacity when she showed that she was not a good candidate for vocational rehabilitation.  The evidence suggested she could increase her earning potential through retraining.

In conclusion, the court stated that a claimant’s scheduled rating is presumed to be correct. The decision of the Workers’ Compensation Appeal Board was annulled. The court remanded the case for further proceedings.

At Sharifi Firm, we help injured individuals pursue workers’ compensation benefits. Contact our office at 1-866-422-7222 for a free consultation.

More Blog Posts:

California Court of Appeals Applies Premises Line Rule to Determine Employee is Entitled to Workers’ Compensation Benefits, Southern California Injury Lawyer Blog, August 10, 2015

California Court of Appeals Holds that Professional Negligence Claim Requires the Negligence Have Occurred in the Rendering of Professional Services, Southern California Injury Lawyer Blog, July 13, 2015

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