The combination of a vague statute (that clearly states it can be rebutted) and the administrative failure to clarify it’s meaning by regulation, has left California’s seriously injured workers in a quandary of not being able to rebut the schedule when their loss of earning capacity greatly exceeds what results from the application of the schedule.
The legislature did authorize the Administrative Director of the DWC to develop a schedule for ratings. In addition, the legislature specifically stated the schedule was presumptive, allowing for rebuttal. How to successfully exercise that rebuttal right is the part that is utterly unclear in the statute, and not clarified by the schedule due to the use of privileged data.
The schedule relies on lawfully secret data, so it’s underpinnings cannot be rebutted directly. And, the statute, without further explanation, is so vaguely written that reasonable minds cannot come up with a format to measure damages to rebut the schedule, or prove the actual percentage of permanent disability. Herein lies the due process violation.
The vagueness contained in the statute could be cured by regulatory explanation or judicial interpretation. The Administration has failed to do so thus far, or to amend the schedule to do so, in spite of a legislative mandate to update the schedule every five years. (The 2005 PDRS needed revision in 2010, but such has not occurred.)
If you have been seriously injured or hurt on a job protect your legal rights and call Sacramento workers compensation lawyer Tom R. Johnson at (916) 922-9902, consultation is free.
A judicial definition of permanent disability does exist from Ogilvie vs. City and County of San Francisco(2011) 197 Cal.App.4th 1262, citing Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320. The definition is offered as: “A permanent disability is one `… which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.’” (State Compensation Ins. Fund v. Industrial Acc. Com. (1963) 59 Cal.2d 45, 52, 27 Cal.Rptr. 702, 377 P.2d 902.)