Nov
12
2009
0

Ogilvie: Building the Case Part I

Building the case for a DFEC rebuttal

Q: How do you build the case for a DFEC rebuttal? A: One step at a time.

There’s a lot of conflicting information about what Judge’s are requiring to making a finding of a DFEC rebuttal under Ogilvie v. City and County of S.F.. [1]  The Board in Ogilvie II is explicit that all you need is post-injury earnings information for the injured worker and similarly situated employees and “simple mathematical calculations with that wage data” using a “non-complex formula.”[2]

Unfortunately, calling a process “simple” and “non-complex” doesn’t necessarily make it so.  Apparently some Judges are requiring some additional showing beyond wage data and “simple calculations.”

What are Judges in your area requiring?

  • Just wage data and calculations?[3]
  • Vocational testimony/evidence regarding earnings?
  • Proof of attempts to seek employment/motivation?
  • Something else?

Share your insight with an e-mail or comment.

  1. Photo courtesy of eliaspunch []
  2. Ogilvie II, p1-2. []
  3. Perhaps just a print-out from PDRater?  ;) []
Sep
16
2009
0

The Role of Rehab Experts after Ogilvie II

Oh, if only rehab was this easy...
Oh, if only rehab was this easy…

Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions.  The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.

As far as I can tell, the WCAB[1] in Ogilvie II basically flip flopped on the role of vocational experts.  Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.[2]

The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.

This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.

  1. Well, eight of the commissioners anyhow. []
  2. I received more than one letter demanding agreement to a vocational counselor under Ogilvie I. []
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.

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