Wanda Ogilvie

Wanda Ogilvie, a 59-year-old transit operator, sustained an admitted industrial injury to her right knee, low back, and neck on April 1, 2004. The parties stipulated her injury would rate 28% under the 2005 Permanent Disability Rating Schedule after adjustments and apportionment, but applicant sought to rebut that rating using vocational evidence of her diminished future earning capacity (DFEC). The WCJ found 40% permanent disability using three methods premised on vocational experts' DFEC percentages. On reconsideration, the WCAB (en banc) held that the DFEC portion of the 2005 Schedule is rebuttable but rejected the WCJ's methods, establishing instead a four-step rebuttal method based on comparing an injured employee's individualized ratio of standard WPI rating to proportional earnings loss against the FEC Rank ratios derived from the RAND data referenced in Labor Code section 4660(b)(2). The Board rescinded the findings on permanent disability, apportionment, and attorney's fees and remanded for a new decision consistent with its opinion. Commissioner Caplane dissented, advocating a simpler approach equating permanent disability to the percentage of lost future earning capacity once the Schedule is rebutted.