Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660
Permanent disability is determined by whole person impairment under AMA Guides, the permanent disability rating schedule, and the effect on future earning capacity.
Applied to evaluate permanent disability rating and rebuttal of scheduled rating.
From the decision · page 6Labor Code section 4660 provides that permanent disability is determined by consideration
of whole person impairment within the four corners of the AMA Guides to the Evaluation of
Permanent Impairment, Fifth Edition, the proper application of the permanent disability rating
schedule in light of the medical record and the effect of the injury on the worker's future earning
capacity. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 [72
Cal.Comp.Cases 565] ["permanent disability payments are intended to compensate workers for
both physical loss and the loss of some or all of their future earning capacity"]; Department of
Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th
607, 614 [83 Cal.Comp.Cases 1680]; Almaraz v. Environmental Recovery Service/Guzman v.
Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc) as
affirmed by the Court of Appeal in Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd.
(Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].)
Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262
A scheduled rating may be rebutted by showing diminished future earning capacity greater than the schedule factor, especially if not amenable to rehabilitation.
Discussed the methods to rebut scheduled rating and the role of vocational evidence.
From the decision · page 6The scheduled rating is not absolute. (Fitzpatrick, supra at 1685.) A rating obtained
pursuant to the permanent disability rating schedule may be rebutting by showing the diminished
future earning capacity is greater than the factor supplied by the schedule. (Ogilvie v. Workers'
Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624]; Contra Costa County
v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 119].)
The court in Ogilvie, supra, addressed the question of: "What showing is required by an employee
who contests a scheduled rating on the basis that the employee's diminished future earning
capacity is different than the earning capacity used to arrive at the scheduled rating?" (Ogilvie, 197
Cal.App.4th at p. 1266.) The primary method for rebutting the schedule rating is based upon a
determination that the injured worker is "not amenable to rehabilitation and, for that reason, the
employee's diminished future earning capacity is greater than reflected in the scheduled rating."
The employee's diminished future earnings must be directly attributable to the employee's work-
related injury and not due to nonindustrial factors such as general economic conditions, illiteracy,
proficiency in speaking English, or an employee's lack of education. (Ogilvie, 197 Cal.App.4th at
pp. 1274§ 1275, 1277).
Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746
The first step in rebutting a scheduled rating is to determine if the injury precludes benefit from vocational rehabilitation.
Applied to assess applicant's amenability to vocational rehabilitation and its impact on rebuttal.
From the decision · page 7We concur with defendant that applicant cannot rebut the scheduled rating of his permanent