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Ogilvie and the Vocational Expert
By Bob Rehm
Bob Rehm is a vocational expert with
27 years of experience as a Vocational Counselor.
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| As it turns out, Ogilvie is the most
significant decision from a vocational standpoint in California Workers’ Compensation
since the Vocational Rehabilitation benefit via Labor Code §139.5
was repealed and replaced with a problematic Supplemental Job Displacement
Voucher system. On the surface, Ogilvie seems to imply that a Vocational
Expert is no longer required and that a “simple mathematical
calculation” and utilization of EDD information suffice as
adequate tools to address and, presumably, rebut the 2005 PDRS. |
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Wanda Ogilvie
v. City and County of San Francisco, Permissibly Self-Insured (2/23/09) 74 Cal. Comp.
Cases 248 (Ogilvie I); Wanda Ogilvie
v. City and County of San Francisco, Permissibly Self-Insured (9/3/09) 74 Cal. Comp. Cases 1127 (Ogilvie
II)
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However, my experience, shared by other
experts, as well as applicant and defense attorneys, suggests otherwise.
In truth, Ogilvie poses more questions than it answers, thus
the second reconsideration as presented in Ogilvie II and
the appeal by City and County of San Francisco. As it stands, and
as of this writing, Ogilvie remains case law. Therefore,
the answers it provides and, more importantly, the questions that
it leaves unanswered, deserve further investigation. As a Vocational
Expert, I would like to provide insight and opinion on some of the
unanswered questions.
First, the answers provided by Ogilvie: The 2005 PDRS Schedule is rebuttable
and the DFEC factor is one of the components that can be addressed
to rebut the Schedule. The Ogilvie calculation is based on the Rand
Corporation model that was utilized in formulating the 2005 PDRS. |
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Ogilvie poses
more questions than it answers
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Questions left unanswered include
the following:
- What, if any, is the role of a vocational expert?
- Is Ogilvie merely a wage loss calculation versus an assessment
of diminished future earning capacity as stated in Labor Code
§4660(a)?
- Is EDD data sufficient or accurate in determining the earning
capacity of similarly situated employees?
- Does three years of no earnings since the date of injury automatically
increase the Whole Person Impairment by 18%?
- Does the Ogilvie calculation begin at the date of injury
or the P&S date?
- What about the injured worker who is “QIW” with
no offer of alternative/modified work, and no transferable skills
following the work injury?
- What about that Voucher and how does it figure into the Ogilvie
calculation?
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Labor Code §4660(a):
In determining the percentages of permanent disability, account
shall be taken of the nature of the physical injury or disfigurement,
the occupation of the injured employee, and his or her age at the
time of the injury, consideration being given to an employee's
diminished future earning capacity.
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I will attempt to address all of
the above unanswered questions, most of which will require input
from a Vocational Expert for case settlement or trial purposes.
First
of all, to get to an Ogilvie calculation, we must revisit Almaraz/Guzman
II, which confirms that the 2005 PDRS is rebuttable and that the
evaluating physician must remain “within the four corners of
the AMA Guides.” As noted on page 8 of the AMA Guides, “The
Guides continue to define disability as an alteration of the individual’s
capacity to meet personal, social or occupational demands... because
of an impairment.” In light of Almaraz/Guzman
II and the accompanying
Ogilvie II decision, Vocational Loss information remains an integral
element to be considered in terms of permanent disability. |
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| Mario Almaraz v. Environmental
Recovery Services (a.k.a. Enviroserve) and State Compensation Insurance
Fund and Joyce Guzman v. Milpital Unified School District and Keenan
Associates (2009) |
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Approximately 95% of the injured workers
referred to me for a Vocational Loss/Ogilvie evaluation have not
yet returned to work. Some have attempted to return to work, but
most are without any vocational guidance. Many are without transferable
skills that they could utilize within their work restrictions. All
of them have been declared unable to return to their usual and customary
job (formerly “QIW”) and alternative or modified work
has not been provided. Ogilvie I discusses “malingering” in
order to increase the impact of an Ogilvie calculation, and this
needs to be considered as well. Applicant, therefore, is advised
to document his/her job search since the P&S date.
My experience
has also been that absent an applicant Ogilvie evaluation, defense
may not engage a Vocational Expert. However, once defense does engage
a VE, the assessment remains essentially the same: that is, evaluating
what the injured worker may be able to do subsequent to injury, based
on transferable skills, education and work history. Therefore the
input by a VE appears to be valuable for both applicant and defense
alike.
Since the injured worker is typically not back to work (and with no
post-injury wage information) at the time of the request for an evaluation,
the “simple mathematical calculation” promoted by Ogilvie simply does not apply. So, how do we determine what post-injury wage
figures go into the Individual Loss Ratio? Only a Vocational Expert
is qualified to evaluate the injured worker and identify jobs that
the injured worker could compete for with or without training from
the Supplemental Job Displacement Voucher. This is the only way to
estimate post-injury wages for the Ogilvie calculation.
This brings us to the comparison of pre- and post-injury earning capacity.
Ogilvie promotes the utilization of EDD data, again suggesting that
applicant or defense attorney can simply look up the data and do the
math. It is not that easy. First, EDD data in terms of specific jobs
is often vague, combining many specific jobs into one general category
and, as a consequence, only providing average wage data which may or
may not correspond to the actual W2s, pay stubs, etc. that the injured
worker provides for the evaluation.
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Ogilvie I discusses “malingering” in
order to increase the impact of an Ogilvie calculation, and this
needs to be considered as well. Applicant, therefore, is advised
to document his/her job search since the P&S date.
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| An example often cited is that the
EDD website does not differentiate between a $30.00 per hour union
carpenter versus a $15.00 non-union carpenter, both with the same
skill set. Additionally, EDD data does not take into consideration
seasonal work or overtime. For instance, I recently evaluated a Tree
Climber 1 who worked for a company that contracts with PG&E.
His pay stubs indicated $14.00 per hour base rate. This is consistent
with EDD data. Annualized, this would come to about $29,120.00. However,
due to the PG&E contract, with storm cleanup, etc., this worker
earned $10,880.00 per year overtime, for a total of $40,000.00 gross
pre-injury earnings. This is not reflected in the EDD database. These
are just two examples where a Vocational Expert can ask the right
questions and sort out the various wage information. |
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EDD data does not take into
consideration seasonal work or overtime.
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As for when to start the Ogilvie calculation,
I believe that utilizing the P&S date is appropriate. Ogilvie does discuss the date of injury as a possible start date, but then
we get into a discussion as to whether TTD benefits are considered
earnings or not. In any event, most injured workers historically
are not eligible or active in the job market until permanent work
restrictions are determined, alternative/modified work is addressed
and permanent and stationary status is achieved. Therefore, an applicant’s
suggestion that three years of no earnings from date of injury automatically
add 18% to the WPI may deserve further scrutiny.
This brings us to the question as to whether Ogilvie promotes
a simple wage loss calculation or true loss of earning capacity as
stated in
Labor Code §4660 and the 2005 PDRS. In Ogilvie, the Commissioners
cite the RAND Study as the basis for utilizing a three-year study
of pre/post injury earnings comparison. However, in order to make
a recommendation on actual loss of earning capacity, a Vocational
Expert will need to evaluate the injured worker rather than have parties
simply debate lack of earnings since the permanent and stationary
date (which may be as recent as 30 days from referral). Additionally,
some injured workers may take jobs at a significantly lower rate of
pay out of financial necessity (not to mention a poor labor market)
and this may not accurately reflect their future earning capacity.
Again, only a Vocational Expert will be able to provide testimony
on which the trier of fact will be able to depend.
Let us return to the injured worker who is a “QIW” and
not yet back to work. The Bureau of Labor Statistics indicates that
on average it takes six months to find a job, even in a decent economy.
Should these six months of no earnings be calculated into the Ogilvie
calculation? Applicant may assert so. And what about the Voucher?
As a rule of thumb, most vocational rehabilitation plans in the past
were comprised of up to six months of vocational training. Should
a period of six months without earnings be included in the Ogilvie
calculation? Again, applicant may assert so. Defense may argue that
Ogilvie does not provide for consideration of no earnings while
the injured worker completes voucher training.
However, Ogilvie II in discussing whether the 2005 PDRS is rebuttable
or not, states, “Further, had the Legislature intended that a
permanent disability rating established by the Schedule was to be conclusive
and unrebuttable, it could have expressly so stated. It did not.” Using
the same logic, had the Commissioners intended that a period of no
earnings during vocational training and/or job search was not applicable,
they could have expressly so stated. They did not. Instead, they simply
assigned a period of post-injury earnings for comparison. This, therefore,
remains an unanswered question. |
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Most injured workers historically
are not active in the job market until permanent work restrictions
are determined and alternative/modified work is addressed.
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| To conclude, applying Ogilvie
is more complicated than a “simple mathematical calculation”
suggests. LC §4660 and the 2005 PDRS both state unequivocally
that Diminished Future Earning Capacity is a fundamental factor in
determining an accurate permanent disability rating. DFEC is clearly
a vocational issue as confirmed by Almaraz/Guzman. Therefore,
in the appropriate cases, parties will need to rely on Vocational
Expert evaluation and testimony to settle or try permanent disability
issues in a timely and cost effective manner. |
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In the appropriate cases, parties
will need to rely on Vocational Expert evaluation and testimony to
settle or try permanent disability issues in a timely and cost effective
manner.
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Bob Rehm is a Vocational Expert providing
services in Monterey, Santa Cruz, San Benito and Santa Clara counties.
Mr. Rehm has 27 years of experience as a Vocational Counselor, including
20 years as an Independent Vocational Evaluator. He continues to provide
expert testimony addressing LeBoeuf, DFEC and Ogilvie
issues. Bilingual (English/Spanish) services are available.
Bob can be reached
at (831) 754-1144 or brvs@sbcglobal.net
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