Ogilvie Appeal Filed with the Calif. Supreme Court

Thursday, September 15, 2011 | 0

Confounding the expectations of many workers' comp pundits, the City and County of San Francisco has filed a petition for review with the California Supreme Court in the Ogilvie case on Sept. 7.

The argument used by Danny Chou, chief of complex and special litigation for the City and County of San Francisco, is twofold.

First, the city/county claims that, "Allowing injured employees to rebut their scheduled rating by showing that their actual percentage loss of future earnings is greater than their scheduled rating contravenes the legislature's intent."

Second, the city/county argues that, "Because the Court of Appeal decision will significantly increase workers' compensation costs for employers, this petition presents an important question of law that warrants review."

It's discretionary as to whether the Supreme Court will take the case. Relatively few workers' comp cases are heard by the court. Recently the Supreme Court refused to entertain an appeal of the Court of Appeals, 6th District in Guzman.

But it's also worth noting that employers and workers' comp insurers have had several big victories in the Supreme Court, including the Brodie case on apportionment and the recent Baker case on how pensions are calculated in high-disability cases.

Many observers thought that an appeal to the Supreme Court would not be filed.

First, the 1st District opinion in Ogilvie actually remands the matter to the Workers' Compensation Appeals Board for further development of the record. So many believe that the issues are not ripe.

Second, there are some in the employer community who believe that the language in the 1st District Court of Appeals decision will be helpful in defending claims.

Specifically, they believe that the Court of Appeals decision essentially resurrected the concepts of Hertz v. Aguilar, a case that is no longer officially citable.

We should know in about 60 days whether the Supreme Court takes the case. If it does, it could be about two years until a decision is rendered.

Here is a link to view the 1st District Ogilvie decision which is being appealed.

Julius Young is an applicants' attorney with the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, at http://workerscompzone.com