Supreme Court Denies Review in Ogilvie Case, First District Court of Appeal Decision Stands

In 2009 we reported about the Ogilvie case decided by the Workers’ Compensation Appeals Board (WCAB).  At issue was how parties to a Workers’ Compensation case can rebut the permanent disability rating schedule to prove a more accurate permanent disability rating for an injured worker.  The original Ogilvie decision dealt with an algebraic formula used to determine an injured worker’s reduction in future earnings capacity.  The permanent disability rating schedule takes into consideration a reduction in future earnings in determining a final disability rating.

Over the last two years, the Ogilvie case has proceeded through the court system and ultimately the First District Court of Appeal issued a decision now known as Ogilvie III.  Ultimately, the First District Court of Appeal held that there are three techniques to show that a rating under the 2005 permanent disability rating schedule is inaccurate, and rejected the earlier determination by the WCAB and how it instructed a party to rebut the injured worker’s diminished future earning capacity. 

The Workers’ Compensation attorneys at Gordon, Edelstein, Krepack, Grant, Felton and Goldstein, LLP have been following this case over the last two years.  We believe that the determination by the First District Court of Appeal (Ogilvie III) was appropriate, and the refusal to review their decision by the Supreme Court was appropriate. 

It remains to be seen which of the three techniques applied in an individual case may prove to alter an injured worker’s rating and result in a more accurate permanent disability rating.  It is clear that there will be additional litigation regarding this issue as the new rule of law is applied in cases going forward.

It is our sense that the tools the Ogilvie III decision provides may be used and are appropriate in a limited number of Workers’ Compensation cases.  It is important to have a skilled attorney in Workers’ Compensation matters review the facts of each individual case to determine if the Ogilvie III decision might be applied to increase a permanent disability award. 

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