A series of WCAB cases have established that an applicant’s testimony alone is insufficient evidence to rebut the rating schedule. Even when sufficient evidence does exist to rebut the scheduled future earnings modifier per the Ogilvie case, an individual should not be allowed to manipulate the earnings loss calculation by malingering or otherwise minimizing post-injury earnings.
In Garcia v. Civil Service Employees Insurance Company, 2010 Cal. Wrk. Comp. PD LEXIS 58, a WCAB panel overturned the trial judge’s 65% PD award because the judge relied only on the testimony of the applicant, a housekeeper with admitted orthopedic injuries. The judge did not consider applicant’s ability, willingness and opportunity to work, did not discuss the time frame used to calculate post-injury earnings, and provided no explanation as to why expert testimony or other evidence outlined in the Ogilvie case was not used. The WCAB found that an applicant’s testimony regarding his or her own lost earning capacity, without other evidence, cannot rebut the standard diminished future earning capacity modifier in the PD rating schedule.
Similarly, in Ochoa v. Liberty Insurance Corp, 2010 Cal. Wrk. Comp. PD LEXIS 59, another WCAB panel rejected applicant’s attempt to rebut the rating schedule through self-serving testimony that his future earnings would have been greater absent the injury. The applicant relied on the Ogilvie case but produced no substantial evidence of earnings loss based on similarly situated employees.
At least one other WCAB decision has overturned a judge’s PD award with an Ogilvie increase because the judge did not consider the applicant’s malingering or unwillingness to work. Shini v. Farmers.