Robin Dempsey, vs. Schneider National, Inc.; Liberty Mutual,

In this case, Schneider National, Inc. and Liberty Mutual filed a petition for removal, requesting that the Workers' Compensation Appeals Board rescind the "Order Rescinding the Findings, Award and Orders dated 6-18-2009" dated July 21, 2009. The petition was denied as the defendant did not provide sufficient evidence to show that allowing the applicant to obtain new evidence to rebut the permanent disability rating would result in significant prejudice.

SCHNEIDER NATIONAL, INC.; LIBERTY MUTUAL, ROBIN DEMPSEY, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAROBIN DEMPSEY, Applicant,vs.SCHNEIDER NATIONAL, INC.; LIBERTY MUTUAL, Defendant(s).Case No. ADJ4297464 (SAC 0342715)OPINION AND ORDER DENYING PETITION FOR REMOVAL            Defendant has filed a timely, verified petition for removal, requesting that the appeals board rescind the “Order Rescinding the Findings, Award and Orders dated 6-18-2009” dated July 21, 2009. Defendant contends that applicant did not act with reasonable diligence, that she could have produced evidence to rebut the permanent disability rating schedule (PDRS) at trial, and that applicant “should not be allowed a ‘second bite at the apple’ to bolster applicant’s permanent disability.” Defendant argues that “[t]o allow applicant to gather new evidence to perhaps bolster applicant’s permanent disability rating will result in significant prejudice to the defendant.” We have received an answer from applicant.            Applicant, while employed as a truck driver on October 7, 2004, sustained an industrial injury to her heart and psyche. At trial on December 2, 2008, applicant raised the issue of whether the 1997 PDRS or 2005 PDRS applies to this injury pursuant to Labor Code section 4660(d). Applicant did not offer any evidence to rebut the 2005 PDRS.            On June 18, 2009, the workers’ compensation administrative law judge (WCJ) issued a Findings, Award and Orders in which he determined applicant’s permanent disability by applying the 2005 PDRS. Applicant filed a petition for reconsideration contending that on February 3, , 2009, subsequent to trial but before the decision in this case, the WCAB had issued an en banc decision in Ogilvie v. City and County of San Francisco 74 Cal.Comp.Cases 248, in which the appeals board set forth the correct method of determining whether and how the diminished future earning capacity portion of the 2005 PDRS may be rebutted.            In respons

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