1st District To Decide Ogilvie

On August 20, 2010 the First Appellate District Court of Appeal issued an Order Granting both petitions for writ of review filed in the Ogilvie II case.  

First the Court ordered consolidation of the two petitions.

Next, the informed the clerk of the court that it need not issue formal writs.

Third, the Court relieved the WCAB of its obligation to provide a certified record, instead relying on the record provided by the parties.

Fourth, the Court certified the following questions to be briefed by the parties:

     1.  What must a party show to rebut the presumption in section 4660?
     2.  Is a showing that a claimant's diminished earning capacity is different than the diminished earning capacity reflected in the PDRS for the claimant's scheduled rating sufficient to rebut the presumption in section 4660?
      3.  Should a general rule be formulated that provides guidance on the showing necessary for a party to rebut the presumption in section 4660? If so, how should the general rule be articulated?

Finally, the court ordered Ogilvie to file the opening brief on these issues on or before August 30, 2010.  The Respondents were given to September 10, 2010 to file any opposition.  Ogilvie was then granted the right to file a reply by September 20, 2010. The Court also indicated the matter would be set for Oral Argument.

Very little can be read into the Court’s Order.  However, by characterizing Ogilvie as the petitioner, the Court seems to have done the applicant’s bar a favor.  Ogilvie will now get two opportunities to brief the issues.  Of course, it is also likely there will be numerous amicus curiae briefs filed in support of both sides.

Stay tuned for more.

Filed August 20, 2010.

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