Ogilvie is Affirmed, Almaraz/Guzman is not: 9/3/09
In cases where the applicant attorney submits a rebuttal to the PDR, Vocational Experts will be needed to defend Ogilvie /FEC issues. Almarez/Guzman has been restricted and this will reduce the subjectivity we have seen and liberties taken by MD’s. No more use of data outside the guides; no more vague language. Defense should consider using a rating service to determine if reports are adhering to the guides. The DEU has cited a very high error rate. It is the responsibility of the applicant to rebut the schedule; however, the MD is the party who has been rebutting the schedule under the Almarez / Guzman “free for all”.
The PDR is rebuttable in regards to elements such as future earning capacity. As I have asserted all along, the Rand study can be used as guidance. (This is never done in any of the reports I have reviewed from other experts). I find the Rand study to be a highly valid regression analysis which can and should be used as the control group. For example, the average percentage of loss for low back body part is about 20%. The FEC modifier is Five. If a vocational evaluation can show far more or far less than this % of loss, then the schedule may be rebutted. The PDRater.com Ogilvie chart based on percentage of loss is very useful to the typical vocational evaluation which ends in a determination of percentage of loss if applicable. The Vocational Expert is not a rater and should not be producing the full string, in my opinion. The area of expertise for the Vocational Expert relates only to the determination of whether or not the FEC modifier is correctly applied.
The party who disagrees with the FEC rating must raise the issue. This will be the AA, except in a rare case of someone having greater earnings after injury instead of loss of earnings, as this would logically mean a reduction in the FEC modifier. Currently the AA has a disadvantage due to the issue of cost of hiring a VR expert. This is why the offer of a quick Ogilvie for $139.00 appeals to the AA’s who can then start the dispute. Once the defense obtains rebuttal expert, the AA can go ahead and hire a voc expert for full evaluation and expect payment. Still, it is essential to work on a retainer basis, because many carriers are just refusing to pay voc expert bills, even when ordered.
The Methodology to be used for DFEC in the original Ogilvie decision contains many exceptions regarding use of the labor market data. It is not a simple task, and the decisions blaring problem is that Ms. Ogilvie never did return to work. Therefore, estimated earnings must be used and the process is not a simple matter of looking up a wage on the EDD tables. There are wide ranges in the tables 10% to 75% tile rankings. Who will determine which is correct for the individual worker?. The estimation process will leave room for many interpretations and assertions, which will need to be supported with logical and evidentiary methodology. This is still uncharted in the workers compensation field, and more likely that not, we are using the standards of civil law in determining future earnings. The preponderance of evidence will prevail, just as the most clinically sound medical report will prevail.
We all know that you can research cashier jobs and find wages, which ranges from minimum wages to $20.00 depending on levels of responsibility. The determination of the proper use of the labor market data will remain in the hands of the VR expert in many cases. We still must know the prior earnings, work history, education, and restrictions before attempting an Ogilvie evaluation. The use of computerized transferable skill analysis may be useful tool, but should not be relied upon. There are no hard studies to prove they are correct. There are too many variables and factors which lead to employment and the data base cannot analyze every factor.
The issue of motivation and other factors are addressed in Ogilvie and upheld.
Other factors may deter return to work and are not factored into this determination. The En Banc case stated that “the employee’s post injury earnings portion of that calculation may not accurately reflect his or her true earning capacity.” (p 33 line 21-22).The en banc decision cited Montana case (Montana, supra 57 Cal.2d at pp 594-595) where “all facts relevant and helpful to making the estimate must be considered. The applicant’s ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant. (p. 34 lines 3-6). ”
“Motivational or other factors may play a role in determining whether a particular employee’s post injury earnings accurately reflect his or her true post injury earning capacity.” (Ogilvie P 34 lines 9-10)
I predict that Ogilvie /FEC evaluations will be sought after when they produce high PD. Workers who can prove they have no earning capacity, and high wage earners who have suffered a 50%-75% reduction in earnings that cannot be compensated in the labor market will benefit most from the rebuttal process.
The issue of the 100% designation remains open to controversy. The use of LC 4662, particularly the mental incapacity language, has been used successfully to avoid the Ogilvie, FEC debate and simply assert the finding by the Trier of Fact as “evident” of total disability. Other factors not addressed are apportionment to non industrial issues, pre-existing educational and language skills, limited labor markets, and prior injuries. Many case laws are used to assert total disability defined in LC 4662. In Sally Perez Vs Universal Care, Inc, SCIF the panel considered the testimony of the vocational expert and concluded that because the applicant is unable to return to the workforce, the applicant has a level of disability which sustained a total loss of earning capacity and was therefore totally, permanently disabled, as defined in the rating schedule.
In these types of cases, the vocational expert addresses the totality of the workers capacity to return to work, and will be able to sue the tenants of LeBouef which finds vocational rehabilitation to be a mitigating factor. The voucher does provide opportunity for restraining, as do the many publicly funded vocational training programs. In extreme cases, it may behoove the carrier to offer rehab servicers voluntarily to avoid findings of 100% disability.
To contact Emily Tincher, call 415 389 8953 or email her at Emily.firstname.lastname@example.org.
Emily Tincher is a vocational expert, in practice over 25 years throughout California, as a specialist in workers compensation. She has a Masters in Vocational Rehabilitation Counseling from the CRC certified program at University of Southern California, and was admitted to the American Board of Vocational Experts as a Fellow.
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