Wanda Ogilvie

In this en banc clarification of its February 3, 2009 decision (Ogilvie I), the WCAB addressed whether the diminished future earning capacity (DFEC) component of the 2005 Permanent Disability Rating Schedule is rebuttable and how it may be rebutted. The Board held that section 4660(c)'s 'prima facie evidence' language unambiguously means a scheduled permanent disability rating is rebuttable, that the burden of rebuttal rests on the party disputing the rating, and that one method of rebuttal is to challenge a component element such as the DFEC adjustment factor by establishing an individualized adjustment factor. Any individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data referenced therein, and the AD's ([1.81/a] x .1) + 1 numeric formula. The Board rejected applicant's argument that permanent disability equates to percentage of diminished future earning capacity and rejected the assertion that its decision constituted an invalid 'underground regulation.' The Board affirmed its prior decision. Commissioner Caplane dissented, arguing the majority improperly restricted the nature and scope of rebuttal evidence, particularly vocational expert opinion.