In the Board Panel Decision of Wilson v. Kohls Department Store (ADJ10902155), the WCAB clarified and corrected interpretation of law regarding DFEC rebuttal for dates of injury on or after January 1, 2013. Specifically, the applicant cannot rebut the permanent partial disability schedule using a DFEC analysis. (Lab. Code, § 4660.1(a)). The applicant may continue to rebut the schedule to show complete loss of earning capacity to establish permanently total disability in accordance with the fact. (Lab. Code, §§ 4660.1(g); 4662(b)). The applicant may continue to obtain vocational expert consultations in all cases and may continue to recover the costs of such evaluations where the procurement of the report is reasonable. (Lab. Code, § 5703(j)).

One of the most significant changes enacted in SB-863 was the modification of the way permanent partial disability is calculated. Following SB-863, Labor Code section 4660.1 was re-drafted to redefine permanent disability for injuries occurring on or after January 1, 2013. Under both Labor Code sections 4660 and 4660.1, “the nature of the physical injury or disfigurement” is defined by use of the AMA. However, in Labor Code section 4660.1, the whole-person impairment assigned under the AMA Guides is increased by a factor of 1.4. (§ 4660.1(b).) The Legislature removed the line “consideration being given to an employee’s future earning capacity” from the factors to consider in determining permanent disability for dates of injury post-January 1, 2013. The intent of the legislature to exclude future earning capacity in the calculation is clear and unambiguous. With regards to the permanent disability rating schedule, applicant cannot rebut a scheduled partial disability rating by arguing a disproportionate impact upon DFEC. DFEC is no longer included as a factor to consider in assigning permanent disability.

Applicant is still able to rebut the rating schedule due to diminished future earnings capacity under Labor Code section 4660.1. Labor Code section 4660.1 expressly states: “(g) This section does not preclude a finding of permanent total disability in accordance with Section 4662.” (§ 4660.1(g).) Permanent total disability in accordance with the fact requires a finding that applicant has lost the ability to work, therefore it requires an analysis of diminished future earnings. As such, applicant may continue to rebut the rating under section 4660.1 where they are unable to work and thereby permanently and totally disabled.

This is a Panel decision. Please recall that panel decisions are not binding precedent. However, the case law continues to confirm that using vocational experts to rebut the schedule is limited to establishing permanent total disability, not simply trying to increase permanent disability.