Grinberg: No Ogilvie Rebuttal for Non-Industrial Factors

Friday, June 8, 2018 | 0

Today I bring you the panel decision in the case of Sandoval v. Waterproofing Associates.  Therein, applicant sustained an injury in 2011 while working as a roofing journeyman, and in 2016 the matter was brought to trial. The injuries were orthopedic in nature.

Gregory Grinberg

Defendant argued for 50% permanent disability based on medical evidence, while applicant argued for permanent total disability based on vocational rehabilitation reporting.

The workers' compensation judge ruled that applicant failed to show permanent total disability “in accordance with the facts” as per Labor Code section 4662(b) and that the vocational rehabilitation evidence was defective because it relied on non-industrial factors.

Applicant sought reconsideration, arguing … well… you know what he was arguing: Give me more money because reasons! 

Sorry for the sass, dear readers, but this was the garden variety argument under Ogilvie, to wit, that the injured worker’s PD exceeds the schedule because of a greater diminished future earnings capacity than provided by the schedule.

The WCJ reasoned that there were several non-industrial factors to be considered in calculating diminished future earning capacity, such as the fact that applicant did not speak English and had very limited education. The defense voc-rehab expert opined that applicant, even in his pre-injury state, had a very limited pool of available jobs.

The Workers' Compensation Appeals Board commissioners affirmed the WCJ’s ruling.

In these situations, we often hear the word “eggshell” thrown around by applicant attorneys.  The eggshell plaintiff (or applicant, in our line of work) theory suggests that we should take an injured worker as we find him or her. 

By that theory, applicants would argue, the fact that this particular applicant was a person who did not speak the English language and had limited education, is irrelevant.

However, the defense answer to this is, naturally, to cite Labor Code section 4664: “[T]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.