Aurelio Mercado, vs. Target Stores And Sedgwick Claims Management Services,

This case involves a dispute between Target Stores and Sedgwick Claims Management Services and Aurelio Mercado over a workers' compensation claim. The Workers' Compensation Appeals Board granted reconsideration to further study the factual and legal issues. The Board held that the opinion of applicant's vocational expert, Mr. Jeff Malmuth, is admissible and rebuts the prima facie evidence of future earning capacity adjustment under Labor Code section 4660(c) and the 2005 Schedule for Rating Permanent Disabilities (PDRS). The Board also held that the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee's future earning capacity has been diminished. The Board rescinded the WCJ's decision and returned

TARGET STORES and SEDGWICK CLAIMS MANAGEMENT SERVICES, AURELIO MERCADO, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAAURELIO MERCADO, Applicant,vs.TARGET STORES and SEDGWICKCLAIMS MANAGEMENT SERVICES, Defendant(s).Case No. ADJ237780 (SFO 0492729)OPINION AND DECISION AFTER RECONSIDERATION            On January 14, 2008, the Workers’ Compensation Appeals Board (Appeals Board) granted reconsideration to further study the factual and legal issues. This is our decision after reconsideration.            In the Finding, Orders and Award of October 23, 2007, the workers’ compensation judge (WCJ) found, in relevant part, that the opinion of applicant’s vocational expert, Mr. Jeff Malmuth, is admissible and rebuts the prima facie evidence of future earning capacity adjustment under Labor Code section 4660(c) and the 2005 Schedule for Rating Permanent Disabilities (PDRS), that applicant’s industrial injury caused permanent total disability, and that defendant failed to carry the burden of proof of apportionment to non-industrial causes. In addition, the WCJ overruled objection to application of DRE Category III in the rating of the medical report of Dr. Zwerin, the Agreed Medical Examiner (AME).            Defendant sought reconsideration of the WCJ’s decision, contending, in substance, that rebuttal testimony on the issue of Diminished Future Earning Capacity (DFEC) is relevant only in determining the FEC component of the permanent disability rating, that the WCJ erred in applying LeBouefv. Workers’ Conip. Appeals Bd. (1983) 34 Cal.3d 234 at 243 [48 Cal. Comp. Cases 587], that the WCJ improperly relied solely on the DFEC component and on subjective , complaints that were rejected by the AME, and that the testimony of applicant’s vocational expert, Mr. Malmuth, is not substantial evidence because his methodology regarding DFEC is inconsistent with the Labor Code and with the 2005 PDRS.            Applicant filed an answer.            Defendant filed a supplemental

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