Doreen Dahl sustained a cumulative industrial injury in 2005 (pre SB 863) to her neck and right shoulder while employed by Contra Costa County as a medical records technician. She was 49 years old and had worked for the county for over 8 years. Dahl’s vocational experts noted that she has a bachelor’s degree from CSU Hayward and a felony conviction for possession and sale of methamphetamine.

The WPI resulted in a rating of 59 percent disability. However, Dahl sought to rebut the scheduled rating through a vocational expert (Jeffrey Malmuth), and the County sought to counter that with its own expert (Ira Cohen). The WCJ initially awarded the 59% disability pursuant to the Schedule but it was was rejected on reconsideration. The WCJ then assigned Dahl a disability of 79 percent. The WCAB affirmed an increase based upon the Olgivie case in the second award. In doing so, the WCAB again concluded that “complete lack of amenability to vocational rehabilitation” is not “necessary before a LeBoeuf analysis may be properly applied.”

The Court of Appeal rejected the WCAB methodology in the published case of Contra Costa County v WCAB (Dahl) holding “When it devised this new methodology, the WCAB acted in excess of its authority.”

There are three methods to rebut the scheduled rating: 1) a factual error in the application of a formula or the preparation of the schedule, 2) when the injury impairs rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than the scheduled rating or 3) when a claimant can demonstrate that the nature or severity of the injury is not captured within the sampling of disabled workers used to compute the adjustment factor. The second method however requires that the diminished future earnings is 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. This case involved application of the second method.

Under the second method, the WCAB held that Dahl could rebut the scheduled rating by showing the injury impaired her amenability to rehabilitation, even where there was less than total permanent disability. The Court of Appeal responded by saying “We are skeptical of WCAB’s conclusion that an employee may invoke the second Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-percent permanent disability.” However the Court did not decide the case on that basis. Instead it concluded “There is no evidence that the injury even limited her rehabilitation prospects.”

“In sum, we find WCAB’s approach in this case flies in the face of Ogilvie and the 2004 amendments to the workers’ compensation scheme. Under the 2004 amendments, a claimant’s scheduled rating is presumptively correct. Ogilvie confirmed the Legislature meant what it said, and that claimants may not rebut their disability rating merely by offering an alternative calculation of their diminished future earning capacity.”