Sep
03
2009
1

Response to WCAB decisions regarding Ogilvie, Almarez/Guzman

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.tincher@cascadedisability.com.

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.
Jun
27
2009
1

Guest Article from Vocational Expert Emily Tincher

Always room for guest articles at PDRater!

Always room for guest articles at PDRater!

Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.

Have you got an article on workers’ compensation you’d like to see published?  Drop me a line and let me know.[1]

Thanks Emily!

P.S. For those of who keeping score at home, this is my 200th post!!!  That’s 200 posts in 357 days or roughly a post every 1.7 days.

  1. Photo courtesy of Stephen Cummings []
Jun
27
2009
0

Guest Article: Vocational Expert Response to Ogilvie/Almaraz/Guzman

The workers compensation law is founded on the concept of exclusive remedy. In exchange the employer is protected from a civil case. The agreement results in liberal construction. The Trier of Fact has always had the latitude to interpret PD when there are gray areas, and can do so in favor of the worker. The traditional concept is that this is a David and Goliath situation and the system should err in favor of the injured workers.

The new En Banc decisions are a recapitulation of this basic tenet of all workers compensation law. We first saw this in Le Bouef, followed by any number of cases where a PD rating is increased by the WCAB. In cases like Espinoza in the late 80’s, literacy was factored out of the PD rating and considered non industrial. This came up again recently in Hertz, but its really old news.

The new En Banc decision has given the applicant’s attorney more encouragement to challenge the rating. There has always been this ability and the challenge is generally successful, if in fact, the worker is far more disabled than rated. Or far less. I recall the excitement when a case law came out in the late 90’s that said the PTP did not always prevail. The judge simply found the D/QME better science, better clinical evidence and more compelling than a poorly conceived PTP report.

The use of the vocational expert in cases where there is a possible injustice has always been an option for the applicant attorney. The defense will need rebuttal evaluations to ensure that these assertions are fairly reviewed by the Trier of Fact. I am pleased to see the issue raised and the heightened interest in the opinions of vocational experts. There are many pitfalls in the practices and methodologies used. Does interest and motivation factor into ability to work? Is possible to identify the “highest and best” earnings and the “lowest and worst?” Certainly a decent vocational expert can take any side of the argument and present a case of very low, or no earnings, or present a case of higher earnings or no loss of earnings. These are hypothetical evaluations, and the factors must be considered carefully.

Recently I evaluated a young man, age 27, who had an injured hand and could no longer deliver furniture. He was earning $16.00 per hour. The applicant’s evaluator determined he had no transferable skills and was able to earn only minimum wage. One year later, the applicant had taken a four week course in phlebotomy and was earning $22.00 per hour, an increase in earning capacity. The software used by vocational experts would never have predicted this outcome. I did however; predict it, as it turned out that the worker had 100 undergraduate units, but no degree. I asserted that with that level of aptitude for learning, he would eventually find his highest and best earning capacity. The evaluation which is limited to D.O.T codes will be open to scrutiny and can be overturned. Only by consideration of all rehabilitation factors is it possible to accurately predict earning capacity.


To contact Emily Tincher, call 415 389 8953 or email her at Emily.tincher@cascadedisability.com.

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.
Sep
01
2008
0

Guest Article: The Old vs. New Rating Schedules

There are two schedules for rating permanent disability (PD) in California workers’ compensation cases. The “old” schedule adopted in 1997 is generally considered to be more generous in assigning levels of disability. In accordance with the 2004 SB 899 legislative reform, the state has established a “new” PD rating schedule effective January 1, 2005. There was considerable dispute as to when the new rating schedule applies.

It is undisputed that the new schedule applies to all injuries occurring on or after January 1, 2005, and it will also apply to those unresolved claims with injury dates before January 1, 2005, unless prior to that date: (1) there existed a comprehensive medical-legal report indicating that PD exists; (2) or there existed a medical report from the treater indicating that PD exists; or (3) the employer was required to provide notice to the worker under Labor Code §4061. Aldi v. Republic Indemnity Co. (WCAB en banc) 71 CCC 783 and Vera v. WCAB (2007) 35 CWCR 233.

The courts have made it clear that the duty to send notice under §4061 arises when the last payment TD benefits is made, not when those benefits commence. Baglione v. AIG (En banc) 72 CCC 444 and Pendergrass v. SCIF (En banc) 72 CCC 456. It does not seem to matter whether the notice was actually sent or not, only when it was required to be sent.

The courts have also clarified that a treating physician’s medical report or note issued prior to January 1, 2005 must in fact state that PD existed before 2005. Costco Wholesale Corp. v. WCAB (Chavez) (2007) 151 Cal. App. 4th 1101, 72 CCC 582. A report that merely contains a conclusion that PD will likely result, without reasoning, is not enough give rise to the old schedule. SCIF v. WCAB (Echeverria) 146 Cal.App. 4th 1311, 72 CCC 33. The mere mention of a condition that could result in PD is insufficient. Trader Joe’s Co. v. WCAB (Evets)(2007) 72 CCC 204. Also, the date that the report issues, rather than the earlier examination date, seems to be controlling. Biller v. WCAB (2006) 71 CCC 513.

The principal remaining controversy involves whether the report in existence prior to 2005 indicating that PD exists, also has to find that the applicant was permanent and stationary (P&S) at that time. Some courts have held that a report must actually indicate the existence of permanent disability at the time of the pre-2005 evaluation, not “at some time” in the future, in order for a pre-2005 injury claim to be rated under the old schedule. The courts have held that the pre-2005 report must not only find factors of PD, but must also indicate that the worker’s condition is at the time of the exam permanent and stationary (P&S) . Zenith Ins. Co. V. WCAB (Azizi) 153 Cal.App.4th 461, 72 CCC 785 and Vera v. WCAB (2007) 35 CWCR 233.

On the other hand, other courts have rejected this P&S requirement, and have held that the statute does not require that the worker’s condition be declared P&S before 2005. They reason that P&S is not necessarily synonymous with PD, and that therefore a P&S finding in the pre-2005 report is not required to trigger application of the old schedule. Genlyte Group, LLC v. WCAB (Zavala) 36 CWCR 1.

This conflict in the courts may have to be resolved by the state Supreme Court, or else through clarifying legislation. If doubt exists as to which schedule applies, ask physician to address permanent disability using both the old and new schedules.


To contact Tom Richard please visit www.wrr-law.com. Mr. Richard is the supervising partner of the firm’s employment law and occupational injury practice. He lectures frequently on current legal topics and has served as an expert witness, pro tem judge and instructor at the Insurance Educational Association (IEA). He is a certified specialist, State Bar of California Board of Legal Specialization, since 1999.
Aug
26
2008
0

Latest EAMS info!

I received a few handouts regarding the new EAMS system while at the San Francisco WCAB yesterday. The WCAB SFO only had a limited number of these documents, so I’ve scanned my copy for everyone else’s benefit.

I also learned some interesting things about EAMS:

  1. Everyone knows that EAMS and the WCAB will reject your filings if you’re not registered with EAMS. Did you know that the Judges aren’t sure if EAMS will reject your filings if the employer is not registered?
  2. If a party brings physical paper exhibits, Judges will only be accepting the most important documents for filing (since the WCAB will be doing the scanning)
    • The parties will be expected to bring any possibly relevant exhibits. Any documents not accepted will be returned to the parties or shredded.
    • Judges will mainly be accepting just permanent and stationary reports.
  3. A party bringing a CD burned with scanned exhibits, will need to submit all medical files and documents which are typically required to be filed with the WCAB.
    • They will will not have the option of only submitting the most relevant exhibits.
  4. For the time being, normal walk through procedures are gone. Any new case activation would not be assigned a Board number until approximately 3 am after the day of submission. Be ready to drop off your walk throughs the day before you want to obtain approval.
  5. The EAMS forms haven’t been approved by the Office of Administrative Law and won’t be mandatory until approved.
  6. For the time being, every Board will have a telephone conference each morning starting at 8 am with their “command center.”
  7. The decision to go ahead with EAMS starting August 25, 2008 was only made on August 22, 2008!

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