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.
Feb
19
2009
2

How does Ogilvie change 2005 ratings?

Workers Compensation Calculator

Workers' Compensation Calculator

I had an interesting e-mail exchange with a friend (and fellow workers’ compensation professional) the other day.[1]

We were discussing the impacts of Ogilvie on 2005 schedule ratings.  He had asked me whether I intended to update the 2005 permanent disability rating calculator to include FEC Ranks after the scheduled 8.  I believe he had suggested FEC Ranks 9 through 20.

I have no intention of manufacturing FEC Ranks 9 through 20 for the following reasons:

  • Maintaining Standards. The entire point of a rating schedule is to allow a standardized method for calculating disability and expressing those disability calculations.   If I invented my own FEC Rank system beyond the scheduled 1-8 Ranks, I would essentially be creating my own rating calculation system.  I’ve gone to considerable lengths to ensure that the rating strings produced by these permanent disability calculators are as standardized, recognizeable, and universal as possible.
  • FEC Ranks are Irrelevant. The FEC Rank system is a simplified method of applying DFEC adjustment factors.  When you use the FEC Rank of a particular body part to adjust the standard using the charts on pages 2-6 and 2-7 of the 2005 PDRS (permanent disability rating schedule), what you’re really doing is essentially multiplying your standard disability against the FEC adjustment factor associated with the particular FEC Rank for the body part in question.  An FEC Rank is only useful for telling you the appropriate FEC adjustment factor to apply to the standard disability.  Thus, FEC Ranks are irrelevant and FEC adjustment factors are all important.
  • Arbitrary FEC Ranks. FEC Rank 1 has an FEC adjustment factor of “1.100”.  However, using the Ogilvie DFEC rebuttal formula, it is possible to end up with very low FEC adjustment factors.  In extreme circumstances it would be possible to have a negative FEC adjustment factor.  The only way to resolve this would be to have several possible negative FEC Ranks.  Besides being somewhat silly, worrying about additional FEC Ranks[2] misses the point.  If you’re using the Ogilvie DFEC rebuttal formula properly, the result will be a new FEC adjustment factor.  If you already have the FEC adjustment factor, you have no need for the FEC Rank!

When I had discussed the impact of Ogilvie earlier, I had pointed out that in some cases the resulting formula will dictate that you use a different FEC Rank than the one indicated by the affected body part.  In other cases you will need to use an entirely new FEC adjustment factor.  In order to keep the 2005 disability calculator current I will eventually have to create a way for the user to override a body part’s standard FEC Rank and specify a new FEC Rank or their own FEC adjustment factor.

I’m not in any particular rush to develop this feature since Ogilvie seems to require three years of post-injury earnings.  I doubt we’re going to see litigation begin in earnest over Ogilvie issues for another 18 to 24 months.

  1. Photo courtesy of Street Fly JZ []
  2. Both higher and lower than the normal 8 []
Feb
07
2009
5

New Calculator: Ogilvie DFEC Rebuttal Calculator – Ready for testing!

Professor, tell me more of this DFEC rebuttal calculator...

Professor, tell me more of this DFEC rebuttal calculator...

Earlier today I installed an Ogilvie v. City and County of SF DFEC Rebuttal calculator into the free workers’ compensation calculators page on this website. [1][2][3] For the moment it is only available to people who have signed up for this website and asked to be a beta tester.  If all goes well, I’ll flip a switch and make it available to the public on Monday morning.

At the moment it requires four pieces of information:

  1. FEC Rank (re: body part in question)
  2. Standard disability (re: body part in question)
  3. Post-injury earnings for Applicant
  4. Post-injury earnings for employees similarly situated to Applicant

Once you add in that information, click “Calculate” and it should crunch through the formula and give you a response.  The WCAB in Ogilvie suggested several possible outcomes to this formula:

  • The “Individualized Loss Ratio” for the injured worker is the same or within the range for the current FEC Rank for the affected body part.  In this circumstance, the 2005 DFEC has not been rebutted.
  • The “Individualized Loss Ratio” for the injured worker is within the range of one of the other seven FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.
  • The “Individualized Loss Ratio” for the injured worker is outside the range of all eight FEC Ranks.  In this circumstance, you could end up with a new FEC Adjustment Factor much higher or lower than any FEC Adjustment Factor associated with the eight FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.

Obviously, there are innumerable factors that go into considerations of whether a Judge (or the WCAB) would find the DFEC portion of the 2005 Permanent Disability Rating Schedule to be rebutted.  This calculation and the information relied upon in performing this calculation cannot be taken as a guarranteed method of rebutting the DFEC portion of the 2005 Permanent Disability Rating Schedule.

If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  That’s right: free as in free.

  1. Photo courtesy of Draggin []
  2. I had this EXACT same calculator as a kid! []
  3. Why, how did you spend your Friday night? []

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