California: Obtaining Substantial Evidence From Vocational Rehabilitation Experts in Ogilvie Cases

At a seminar during the recent DWC 19th Annual Educational Conference in Oakland, we heard opinions about interpreting Ogilvie, rating permanent disability, and rebutting the 2005 Permanent Disability Rating Schedule. Although Ogilvie did not give us definitive instructions on how to rate permanent disability, the presenters gave suggestions on how to interpret Ogilvie in the meantime. (Ogilvie v. WCAB; City and County of San Francisco v. WCAB (Ogilvie) (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, rev. den. 10-26-2011).

Rating permanent disability continues to be a complicated process, requiring continuous study of current statutes and case law, but hearing from experienced presenters helps.

Thorough, detailed handouts for this seminar are available at:

http://www.dir.ca.gov/DWC/educonf19/Ogilvie/Ogilvie.html

Judge Casey’s presentation in particular focused on how to obtain substantial evidence from the Vocational Rehabilitation (VR) experts in Ogilvie cases. She provided a handy checklist to follow and suggested that VR experts include the following in their reports:

“1. Selection of Ogilvie Method: Which of the three Ogilvie methods were used to calculate the VR expert’s conclusion?

“2. Adequate Analysis: Did the VR expert provide an adequate explanation as to the process used to arrive at his or her conclusion?

“3. Separate Analysis for Each Method Selected: If more than one of the three Ogilvie methods were used, was each method identified and separately analyzed?

“4. Rebuttal of Entire Rating String or just DFEC component: Does the VR expert’s final number selected represent the whole person impairment (WPI), the permanent disability (PD) percentage, or the adjustment for diminished future earning capacity (DFEC)? That is, does VR expert intend for the final number replace the entire rating string or just the DFEC component of the rating string? What is the basis for this determination?

“5. Compliance with LC 4660(a): If the number offered represents the permanent disability (PD) percentage, did the VR expert’s analysis explain the process used to consider all four elements of percentage of disability set forth in LC Section 4660(a), ie. Nature of the injury, age of injured worker, occupation and employee’s diminished future earning capacity.

“6. “Impermissible Factors: Did VR expert avoid factoring in non-industrial “impermissible” factors? Ogilvie Court sought to limit application of these rebuttal methods “to cases where the employee's [DFEC is] directly attributable to the employee's work-related injury, and not due to nonindustrial [impermissible] factors...” The Ogilvie Court defined impermissible factors as:

* “general economic conditions,

* illiteracy,

* proficiency in speaking English, or

* an employee's lack of education.”

“7. VR expert’s report as substantial evidence: Does the VR expert’s analysis (including deposition and reports) constitute substantial evidence? In the medical world, physician’s use the phrase “reasonable medical probability” to meet this standard. See Escobedo v. Marshall, (2005) 70 CCC 604 & E.L. Yeager Constr’n v. WCAB (Gatten), (2006), 71 CCC 1687. Is there a similar standard requirement for VR experts?”