Ever since the Legislature’s enactment of SB 863 effective January 1, 2013, one of the most important unsettled issues is whether vocational evidence may be used to rebut a scheduled rating for injuries on or after that date. This is relevant because in the published decision of Ogilvie v. WCAB (2011) 197 Cal.App.4th 1262, the First District Court of Appeal held in part that an injured worker may dispute their scheduled rating on the grounds that it does not accurately reflect that worker’s true diminished earning capacity due to an industrial injury. Id. at 1276. Ogilvie noted that one of the ways to do this was with vocational evidence to show an injured worker was not amenable to rehabilitation (citing LeBoeuf v. WCAB (1983) 34 Cal.3d 234). Practitioners consequently retain vocational experts for injured employees to show the impact of injuries on their diminished future earning capacity. The Legislature, however, made significant changes to permanent disability (PD) as part of SB 863.
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