Workers’ Compensation · Primary-source case analysis

Ogilvie: The Scheduled Permanent-Disability Rating Was Rebuttable

By Aneeta Mishra and Timothy Chan

Published May 3, 2026 · Updated October 18, 2026

Decision: Ogilvie v. City and Cnty. of San Francisco, No. ADJ1177048 (SFO 0487779) (WCAB Sept. 3, 2009) (en banc).

A worker’s loss of earning capacity can exceed the permanent-disability percentage produced by the rating schedule. That difference alone does not authorize replacing the rating with an expert’s earnings-loss estimate. The 2009 WCAB Ogilvie decision proposed an individualized adjustment method; the Court of Appeal rejected that method in 2011 while preserving defined ways to challenge a scheduled rating.

For a rating dispute, the useful question is therefore specific: Is there an error in the calculation, an industrial injury that impairs rehabilitation, or a medical consequence the schedule’s sample did not capture? Start there rather than assuming a larger vocational estimate is itself a replacement rating.

The schedule supplied prima facie evidence

Wanda Ogilvie, a San Francisco bus driver, injured her back and knee when her disabled bus was being towed in April 2004. The parties agreed that the 2005 schedule produced a 28-percent permanent-disability rating. Their vocational experts estimated an earnings-capacity loss of roughly 51 to 53 percent. After considering different approaches, the judge selected a 40-percent disability rating. Those three sets of numbers measured different things; they were not interchangeable percentages. Ogilvie v. WCAB, slip opinion, pages 2–4.

The WCAB’s September 2009 en banc decision explained that the schedule supplied prima facie evidence—an initially sufficient rating that could be overcome with legally adequate proof. The party disputing it carried the burden. This was permission to prove a qualifying challenge, not a promise that the highest percentage would control. WCAB Ogilvie, pages 8–15, 45–46.

The WCAB’s proposed adjustment did not survive review

The WCAB proposed comparing the worker’s post-injury earnings with those of similarly situated employees, calculating an individual rating-to-earnings-loss ratio, and using that ratio to choose or calculate a different diminished-future-earning-capacity adjustment. The Board considered this consistent with the statute, the RAND studies and the schedule’s numerical formula. That describes the historical agency decision, not an approved present-day shortcut. WCAB Ogilvie, pages 20–29.

In 2011, the Court of Appeal held that the statute did not authorize the alternative adjustment formula the Board had devised. The schedule already accounted for diminished future earning capacity through the method the Legislature prescribed. A worker could not substitute an individualized adjustment merely by showing the schedule failed to compensate every dollar of earnings loss. Ogilvie v. WCAB, Nos. A126344 & A126427 (Cal. Ct. App. July 29, 2011), slip opinion, pages 6–9, 14–16.

The court identified bounded ways to rebut a rating

The appellate court explained three routes drawn from the governing law:

An error in the calculation or its data. A mistake in applying the formula, or in the facts used to prepare it, can justify correction. This is different from replacing the prescribed formula because another one produces a larger number. Ogilvie v. WCAB, slip opinion, pages 9–10.

Industrial disability that impairs rehabilitation. Under the LeBoeuf approach discussed by the court, the work injury may prevent rehabilitation and cause greater disability than the schedule reflects. The analysis must separate effects of the industrial injury from other causes, such as general economic conditions, lack of education or limited English proficiency. A vocational opinion needs to explain that connection rather than treating unemployment itself as proof. Ogilvie v. WCAB, slip opinion, pages 10–12.

An unusual medical consequence not captured in the sample. The court discussed a rare injury or complication that produces greater loss than the type of injury represented in the schedule’s underlying data. It left the precise method of proving that circumstance to further Board consideration. This was not permission to replace every scheduled rating with an individualized wage-loss formula. Ogilvie v. WCAB, slip opinion, pages 12–14.

Later authority controls current use

The Court of Appeal reversed the WCAB decision, annulled the award and sent the matter back. It did not decide on that record whether Ogilvie had properly rebutted her scheduled rating or select her final disability percentage. Calling the later opinion only a qualification of the 2009 decision misses its practical effect: The Board’s proposed alternative adjustment method was rejected. Ogilvie v. WCAB, slip opinion, pages 14–16.

The injury date also matters. This litigation concerned the older section 4660 system. For injuries on or after January 1, 2013, Labor Code section 4660.1 uses different statutory rules, including a 1.4 adjustment to whole-person impairment. Do not carry the rejected individual earning-capacity formula into a newer claim. Nor does this history mean that every form of vocational rebuttal is forbidden; the governing statute, later authority and the evidence supporting the particular challenge must be considered together.

Key takeaways

• Identify the injury date and the applicable rating statute before choosing a rebuttal theory.
• Keep a vocational earnings-loss percentage separate from a permanent-disability rating.
• Ask which recognized problem the evidence proves: A calculation error, impaired rehabilitation or an unusual medical consequence.
• Read the 2009 agency decision with the 2011 appellate reversal; a historical formula is not current authority merely because it appears in an en banc opinion.

Discussed in: California Permanent Disability Ratings: What the DEU Rating Means.