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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standpoint in California Workers’ Compensation since the Vocational Rehabilitation benefit via Labor Code §139.5 was repealed and replaced with a problematic Supplemental Job Displacement Voucher system.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.
 
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)
 
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.
 
Ogilvie poses more questions than it answers
 
Questions left unanswered include the following:
  1. What, if any, is the role of a vocational expert?
  2. Is Ogilvie merely a wage loss calculation versus an assessment of diminished future earning capacity as stated in Labor Code
    §4660(a)?
  3. Is EDD data sufficient or accurate in determining the earning capacity of similarly situated employees?
  4. Does three years of no earnings since the date of injury automatically increase the Whole Person Impairment by 18%?
  5. Does the Ogilvie calculation begin at the date of injury or the P&S date?
  6. What about the injured worker who is “QIW” with no offer of alternative/modified work, and no transferable skills following the work injury?
  7. What about that Voucher and how does it figure into the Ogilvie calculation?
 
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.
 
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.
 
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)
 
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.
 
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.
 
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.
 
EDD data does not take into consideration seasonal work or overtime.
 
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.
 
Most injured workers historically are not active in the job market until permanent work restrictions are determined and alternative/modified work is addressed.
 
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.
 
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.
 
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