Ogilvie — rebutting the DFEC / earnings adjustment

How later panels applied it

Newest released decisions whose legal-standard extraction named this holding. Each quotes the passage and links to the official PDF. The leading case is cited the way courts cite it; our own cards stay ADJ, date, and issue. Litigated tail — not a win rate.

• ADJ12792074 · 2026-04-27 · Sacramento District OfficeOgilvie

  Determinative passage · p.14(a) there is no overlap between the effects on ADLs as between the body parts rated; or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs. (Vigil, supra, 89 Cal. Comp. Cases at p. 694.) In the en banc decision in Nunes I, supra, 88 Cal.Comp.Cases 741, we held that section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but that the Labor Code makes no statutory provision for "vocational apportionment." However, we further held that vocational evidence may be used to address issues relevant to the determination of permanent disability. While the PDRS is presumptively correct (see Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (2010) 187 Cal.App.4th 808, 826 [75 Cal.Comp.Cases 837]), "a rating obtained pursuant to the PDRS may be rebutted by showing an applicant's diminished future earning capacity is greater than that reflected in the PDRS." (Nunes I, supra, 88 Cal.Comp.Cases at p. 749.) Among the methods described for challenging a rating obtained under the PDRS was establishing that "the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating." (Ogilvie v. Workers' Comp. Appeals Bd.

  Vocational evidence must address apportionment and cannot substitute impermissible vocational apportionment for medical apportionment.

  Official decision · page 14 →
• ADJ7483164 · 2026-03-16 · Sacramento District OfficeOgilvie

  Determinative passage · p.10Another way the cases have long recognized that a scheduled rating has been effectively rebutted is when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating. This is the rule expressed in LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [193 Cal.Rptr. 547, 666 P.2d 989]. In LeBoeuf, an injured worker sought to demonstrate that, due to the residual effects of his work-related injuries, he could not be retrained for suitable meaningful employment. (Id. at pp. 237-238.) Our Supreme Court concluded that it was error to preclude LeBoeuf from making such a showing, and held that "the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee's permanent disability rating."

  Applied to support rebuttal of strict scheduled rating by applicant.

  Official decision · page 10 →
• ADJ12655039 · 2026-02-20 · Van Nuys District OfficeOgilvie

  Determinative passage · p.6capacity is greater than reflected in the employee's scheduled rating. This is the rule expressed in LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [193 Cal. Rptr. 547, 666 P.2d 989]. In LeBoeuf, an injured worker sought to demonstrate that, due to the residual effects of his work-related injuries, he could not be retrained for suitable meaningful employment. (Id. at pp. 237-238.) Our Supreme Court concluded that it was error to preclude LeBoeuf from making such a showing, and held that "the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee's permanent disability rating."

  The Board found that the vocational expert's opinion was not substantial evidence because it included work restrictions beyond those medically supported, thus the permanent total disability finding was not supported.

  Official decision · page 6 →
• ADJ10219413 · 2025-12-08 · Santa Rosa District OfficeOgilvie

  Determinative passage · p.4(Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (Guzman).) However, the scheduled rating is not absolute. (Fitzpatrick, supra, at pp. 619-620.) A rating obtained pursuant to the PDRS may be rebutted by showing an applicant's diminished future earning capacity is greater than that reflected in the PDRS. (Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624] (Ogilvie); Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 1119] (Dahl).) In analyzing the issue of whether and how the PDRS could be rebutted, the Court of Appeal has observed:

  Considered in evaluating whether the scheduled rating was rebutted by vocational evidence.

  Official decision · page 4 →
• ADJ3317169 · 2025-05-21 · Fresno District OfficeOgilvie

  Determinative passage · p.4I. To properly analyze whether applicant is permanently totally disabled, one must understand how permanent total disability rebuttal works. As our Supreme Court has explained:

  Applicant proved complete loss of future earning capacity due to industrial injury, rebutting scheduled rating.

  Official decision · page 4 →
• ADJ15505677 · 2024-12-30 · Santa Rosa District OfficeOgilvie

  Determinative passage · p.11However, "an employee may challenge the presumptive scheduled percentage of permanent disability prescribed to an injury by showing a factual error in the calculation of a factor in the rating formula or application of the formula, the omission of medical complications aggravating the employee's disability in preparation of the rating schedule, or by demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating." 5 (Ogilvie, supra, at p. 1277.) The court in Ogilvie thus affirmed the continued relevance of vocational evidence with respect to the determination of permanent disability. (Applied Materials v. Workers' Comp. Appeals. Bd. (Chadburn) (2021) 64 Cal.App.5th 1042 [86 Cal.Comp.Cases 331]; see also County of Sonoma/Health Services Dept. v. Workers' Comp. Appeals Bd. (Helper) (2023) 88 Cal.Comp.Cases 309 [2023 Cal. Wrk. Comp. LEXIS 4] (writ den.).)

  Applied to support the finding of permanent and total disability based on vocational non-feasibility.

  Official decision · page 11 →
• ADJ7037201 · 2024-12-06 · Marina Del Rey District OfficeOgilvie

  Determinative passage · p.4We first address defendant's contentions that the WCJ erred in adding rather than combining applicant's disabilities herein. The Permanent Disability Rating Schedule (PDRS) is prima facie evidence of an injured employee's permanent disability. (Lab. Code, § 4660; cf. Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1274§ 1277 [76 Cal.Comp.Cases 624] (Ogilvie).) The PDRS provides that the ratings for multiple body parts arising out of the same injury are "generally" combined using the Combined Values Chart (CVC), which is appended to the PDRS. (2005 PDRS, at p. 1-10.) Yet, because it is part of the PDRS, the CVC is rebuttable and a reporting physician is not precluded from utilizing a method other than the CVC to determine an employee's whole person impairment so long as the physician's opinion remains within the four comers of the AMA Guides. (Lab. Code, § 4660; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 818§ 829 [75 Cal.Comp.Cases 837].)

  Applied to assess combination vs. addition of disabilities.

  Official decision · page 4 →
• ADJ1715757 · 2024-09-16 · San Diego District OfficeOgilvie

  Determinative passage · p.2Next, we turn to the merits. In our recent decision in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30] (Appeals Board en banc) (Nunes), we discussed the role of vocational evidence in workers' compensation proceedings:

  Applied to evaluate vocational non-feasibility and apportionment issues

  Official decision · page 2 →