Just over a month after oral argument the Court of Appeal has issued their ruling, reversing the en banc decisions of the Workers’ Compensation Appeals Board, annulled the award of permanent disability to Ms. Ogilvie, and remanding the case for further proceedings. 1
So, what does this new Ogilvie decision mean for us?
- The calculations from the en banc decisions of Ogilvie I/II are no longer valid.
- An injured worker can still rebut a scheduled rating in accordance with [Download not found] and [Download not found].
- An injured worker may rebut a scheduled rating in one of three ways:
- Demonstrating “a factual error in the application of a formula or the preparation of the schedule.” (Ogilvie III, p10-11). Given the examples provided, probably references proving a defect in the [Download not found] itself.
- Demonstrating impairments via [Download not found]-style analysis that “the employee will have a greater loss of future earnings than reflected in a rating because, due to the industrial injury, the employee is not amenable to rehabilitation.” (Ogilvie III, p12). However, the increased disability must not be “due to nonindustrial factors such as general economic conditions, illiteracy, proficiency to speak English, or an employee’s lack of education.”
- Demonstrating “the claimant’s disability has been aggravated by complications not considered within the sampling used to compute the adjustment factor.” (Ogilvie III, p13). This appears to be a two-step process of having to prove a complex injury and then proving that the sample for the adjustment factor didn’t account for such injuries or complications.