On June 22, the California Court of Appeals, First District will hold long awaited oral arguments in the case of Wanda Ogilvie vs. City and County of San Francisco.
Arguing on behalf of Ms. Ogilvie will be Attorney Mark Gearheart. Arguing for the City and County of San Francisco will be attorney Danny Chou.
Hanging in the balance is the Ogilvie en banc decision of the California Workers’ Compensation Appeals Board (see a link to the case at the end of this post).
A long line of cases, going back many years, has found the PD rating schedule rebuttable. That was reaffirmed in the Almaraz and Guzman cases which deal with rebutting the strict AMA Guides 5th edition impairment rating formula.
If the PD rating schedule is rebuttable, is one method to rebut the schedule the mathematical formula devised by the WCAB in Ogilvie? Or are there other methods that the appellate court might endorse?
After all, the FEC factor as adopted in the 2005 PDRS does not measure loss of future earning capacity. No “cross-walk” study was done to translate wage losses into an FEC factor at the time the 2005 PD schedule was unveiled.
Pre-Ogilvie, vocational experts suggested various approaches in formulating a DFEC number. These included the following:
-the SEDEC numeric formula which determined historical average earnings and then compared the single job or pool of jobs that most reasonably offer the greatest employment potential to the worker, also factoring in potential scenarios including reduced worklife, the impact of getting training etc)
-the “McCroskey” transferrable skills approach, using a computer program and other data such as the DOT, exertional & non-exertional demands of employment & SVP (specific vocational preparation etc.) to determine probable diminished future earning capacity
-the RAPEL approach. (looking at various factors such as a rehab plan, access to the labor market, playability, earnings capacity, labor force participation etc)
Many of the early DFEC cases used one or more of these methods to rebut the overall final disability percentage. These include the following cases, many of which were widely circulated in the comp community: Bojorquez, Felix, Benko, Cordon, Lopez, Mercado, Favor etc
If the Court of Appeals rejects the Ogilvie approach, could it throw the gates open for use of one or more of these methods to rebut the schedule?
Or could it adopt a notion that the schedule is rebuttable but only in very limited fashion?
As written, the Ogilvie en banc decision envisions use of numerical calculations based on EDD data. In practice, vocational experts have often been used to address how the “Montana factors” play into the wage losses suffered by the worker.
Most claimants, many attorneys, and more than a few judges don’t have a good handle on all these concepts. Depending on tomorrow’s outcome, they may have to master Ogilvie.
Or not.
Stay tuned.
Julius Young
www.workerscompzone.com
www.boxerlaw.com
Category: Political developments
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