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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you can't find in
practice guides
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Profiles of people who changed workers’ compensation
law.
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• Warren Schneider
• Marjory Harris
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HARRIS: How does a
vocational expert
calculate PD?
MARTIN: When analyzing
“future diminished earning
capacity” under LC 4660(a) a vocational expert uses
a “Transferable Skills Assessment” to compare the
applicant’s pre-injury earning capability with post-
injury earning capability. Empirically based software
programs, routinely used in Federal and State courts,
can assist the expert in identifying the reduction in
earning capacity.
One such program, developed by Billy J. McCroskey,
Ph.D., was on display at the January 2005 convention
of the California Applicants’ Attorneys Association
(CAAA). It is based on the Federal Government’s
“Dictionary of Occupational Titles” (D.O.T.), and has
been empirically tested and found to be reliable
(McCroskey & Hahn, 1998, McCroskey, 2000).
While I am not endorsing any particular product, it is
imperative that any analysis be “based on empirical
data and findings that aggregate the average
percentage of long-term loss of income resulting
from each type of injury for similarly situated
employees,” as required by LC 4660.
There are O*NET based programs as well. The important point here is that
the data come from governmental agencies, making it objective and reliable.
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After gathering three broad categories of information,
the vocational expert will then conduct an analysis,
often employing a numeric formula like “SEDEC” or
“MVQS” to arrive at a final percentage of Future
Diminished Earning Capacity, which represents the
permanent disability of the applicant. (See
accompanying article by Dr. Hall on “Determining
Diminished Earning Capacity in the California
Workers’ Compensation Program”)
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The Vocational Expert (VE) will need to know the
applicant’s post-injury functional capacity. One
example of an “assessment of functional capacity”
appears on pages 5 and 6 of the DWC’s new PR-4
form for treating physicians to fill out when an
applicant is declared “permanent and stationary” or
at “maximum medical improvement.” Others can be
found on the Social Security website. It is absolutely
essential that you define the applicant’s post-injury
functional capacity, and even work restrictions,
for the expert.
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The AMA Guides make clear that it is the evaluating
physician’s obligation to define the applicant’s post-
injury functional capacities.
“When a physician is asked to evaluate work-related
disability, it is appropriate for a physician
knowledgeable about the work activities of the
patient to discuss the specific activities the worker
can and cannot do, given the permanent
impairment.” (Page 5, emphasis added)
Physicians may also provide work restrictions:
“If requested, the physician may need to analyze
different job tasks to determine if an individual
has a residual function to perform that complex activity. The physician should
also identify any medical consequence of performing a complex activity such as
work.” (page 22, italics in original) A sample report provided on pages
23-24 ends with “Work ability, work restrictions (If requested, review
abilities and limitations in reference to essential job activities)”
The final report is not complete unless such factors are included in the
physician’s report:
“A complete impairment evaluation provides valuable information beyond an
impairment percentage, and it includes a discussion about the person’s
abilities and limitations.” (page 15, emphasis added)
In considering what post-injury work activities the applicant can safely engage
in, “The physician and other responsible persons should keep in mind the
potential for impairment aggravation.” (page 13)
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injured worker being assessed under the Guides is entitled to more than the
whole person impairment percentage: If requested, the physician must
discuss work ability, work restrictions, and medical consequences of performing
work. |
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You should write to the physician in advance of the
final disability exam requesting information about
work restrictions, limitations, and potential for
impairment aggravation. When you receive the report,
immediately forward it to your vocational expert.
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In addition to the work restrictions and limitations,
the VE will need detailed work and educational histories. Your VE should have a
questionnaire that
you can use at the intake of the case while the
applicant has his or her job duties firmly in mind.
After analyzing the medical limitations, work and
educational histories, and government data, the VE
is able to express the applicant’s “Future Diminished Earning
Capacity” in the form of a percentage of reduction. For example, a 39
year old bricklayer earning $25 per hour with only a high school education and
few or no transferable skills may suffer a significant reduction in earning
capacity if he injures his back because he has few, if any, skills to continue
to earn a living. It should be kept in mind, however, that an injured worker
who one can return to the same earnings after an injury may still suffer a loss
of earning capacity, representing a likely reduction in earnings at some point
in the future, or an increase in effort to keep earnings at the same level.
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HARRIS: Who is going to
pay for the
Vocational Expert?
MARTIN: Until we have a
schedule that reflects the
true level of Diminished Future Earning Capacity, as
SB 899 requires, employers are ultimately going to
pay the costs associated with the expertise
necessary for the Board to provide accurate
awards of PD.
Applicants will seek reimbursement of their expert’s
retainer fee under LC 5811 and cases such as
Whitely vs. Diamond,13 CWCR 97 and the California
Supreme Court case of Johnson vs. WCAB, 37
Cal.3d 235 (1984), which held:
This court must construe section 5811 liberally,
"with the purpose of extending [its] benefits for the protection of
persons injured in the course of their employment." (§ 3202.) As
Justice Matthew O.
Tobriner stated for the court in Quinn v. State of California (1975) 15 Cal. 3d
162 [40 Cal. Comp. Cases 597, 124 Cal. Rptr. 1, 539 P.2d 761], section 3202
"requires the courts to view the [Workers' Compensation Act] from the
standpoint of the injured worker, with the objective of securing for him the
maximum benefits to which he is entitled."
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HARRIS: Where do you see
all this going in the
next 12 months?
MARTIN: At least two things will
continue to occur.
First, there will be a robust educational effort by
various groups, including CAAA, to assist judges,
attorneys, and claims professionals in implementing
the legislative mandates of SB 899 in general and LC
4660 in particular. Second, the issues and concepts
discussed in this interview will be raised more and
more frequently at MSCs and trials in the months
to come.
To contact Tom Martin:
Thomas F. Martin
A Professional Corporation
2107 North Broadway, Suite 206
Santa Ana, California 92706
Phone: (714) 547-5025
Email: THOMAS861@aol.com
www.thomasfmartinplc.com
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To learn more about proving up the new permanent disability, go
to www.caaa.org to sign up
for the California Applicants’ Attorneys Association December rating
seminars in Northern and Southern California or on the Internet.
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