Post-Ogilvie, is there a need for VR experts?

6 10 2011

In light of the recent decisions, many attorneys are asking if there is still a role for VR experts now that Ogilvie is dead. To answer this, we need only take a look at the case that turned Ogilvie on its head.

The appellate court on July 29 reversed the decision of the California Workers’ Compensation Appeals Board in the case of Ogilvie vs. WCAB, sending the case back to the appeals board for further review of evidence.

In the decision, the court said that the Ogilvie method of determining the FEC modifier was inappropriate, and the court allowed three different methods of approaching cases. The most significant method for our discussion is simply that the court returned the status quo to pre-Ogilvie. Prior to Ogilvie, VR experts were retained to address a worker’s future earning capacity in order to demonstrate that the individual worker’s ability to earn was NOT accurately depicted by the existing rating system, therefore attempting to increase benefits. Ogilvie attempted to quantify and standardize a method for doing so. In the July 29 decision, the court returned us to the days before Ogilvie. This means there may still be a role for VR experts, particularly in cases where the AMA guidelines and the existing rating system do a poor job of representing the future earning capacity for an injured worker.

Frankly, this will likely mean that far fewer cases will proceed with VR experts. One reason is that determining with accuracy someone’s earning capacity is far more difficult than simply doing an Ogilvie calculation. Ogilvie analyses were often (but not always) performed strictly on the basis of wage info. Determining FEC, however, often involves a thorough evaluation of the worker, which may include interview, testing, and more. As such, expert’s fees will be higher than in Ogilvie cases, and referrals to experts will therefore be made in a less casual fashion than we saw in Ogilvie.

Time will tell, of course, what happens as this issue continues to shake out. Most people agree that the pre-Ogilvie method was less than satisfactory. A return to that method is therefore met with mixed feelings and opinions.




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