Arturo Diaz — ADJ11432893

Applicant Arturo Diaz sustained an admitted industrial injury to his right foot and toes (second, third, fourth) on January 17, 2018, when a piece of a 1000-pound drill hammer fell on his foot, requiring three surgeries including amputation of the second toe. The AME, Dr. Fernandez, rated 12% WPI, which scheduled to a 21-22% permanent disability rating, but the WCJ adopted a vocational expert's (Mr. Ramirez) opinion of 50.1% diminished future earning capacity to award 50% permanent disability. Defendant sought reconsideration, arguing the vocational evidence did not rebut the scheduled rating because applicant was amenable to vocational rehabilitation, and that the schedule rating contained a clerical error (should be 21%, not 22%). The Board granted reconsideration, finding applicant could not rebut the schedule under either a LeBoeuf theory (since he was amenable to rehabilitation) or the third Ogilvie method (since Ramirez failed to demonstrate the injury's severity was not captured by the RAND sampling). The Board amended the award to 21% permanent disability but affirmed the order requiring defendant to pay Mr. Ramirez's vocational expert bill of $3,912.95.