In a recent Panel decision in Garcia v. Hinrichsen, et al., the WCAB found that although the applicant had presented evidence to rebut the scheduled 2005 Permanent Disability Rating Schedule (PRDS) Diminished Future Earning Capacity (DFEC) adjustment factor, the trial judge had not properly weighed the evidence. The WCAB emphasized that the burden of proof is on the applicant. Generic testimony of earning capacity is not enough to rebut the scheduled DFEC adjustment.

In Garcia, the applicant testified to his earning capacity to rebut the scheduled DFEC adjustment. This resulted in permanent disability of 65%, rather than the 23% it would have been under the scheduled 2005 PDRS DFEC adjustment factor. Based on this testimony, the trial judge awarded the higher level of permanent disability.

The WCAB stated that the trial judge mechanically applied the Ogilvie formula, without exercising discretion regarding what evidence to rely on for post-injury earnings and the earnings period. The trial judge relied solely on the applicant’s testimony regarding lost earnings without a discussion of the evidence outlined by Ogilvie. Further, the trial judge did not indicate the period used to calculate the applicant’s post-injury earnings and earning loss.

The instruction to the trial judge was to fully analyze the period for an earnings loss calculation and to weigh the rebuttal evidence against the scheduled rating to determine which is more indicative of the applicant’s earning capacity.

The WCAB in Garcia as well as in Shini v. Pacific Coast Auto Body & Truck, et al., discussed the “Montana factors” from Argonaut Ins. Co. v. IAC (Montana). These factors include the applicant’s ability to work, his age, his health, willingness and opportunities to work, skill and education, the general condition of the labor market and employment opportunities for persons similarly situated. As stated in Ogilvie, the recent WCAB decisions emphasize that these factors are all relevant in determining a permanent award.