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Should California’s workers’ comp system have a fee schedule for vocational expert witnesses?

That’s what is being contemplated in AB 1168. The bill, sponsored by Sacramento -area Democrat Richard Pan, is set for hearing in the California Senate Labor and Industrial Relations committee on Wednesday.

The bill would require the DWC to hold hearings and adopt a VR fee schedule applicable to voc evaluations and vocational testimony.

Ironically, that same morning in San Francisco the California Court of Appeals, First District will be holding oral arguments in the Wanda Ogilvie V. City and County of San Francisco case.

Vocational experts are often used in workers’ comp cases where there are Ogilvie issues. The Ogilvie en banc decision of the WCAB that is being appealed envisioned rebutting a component of the PD rating schedule with numeric wage loss data.

This was confusing and intimidating to many attorneys and judges, and vocational experts continued to be used as consultants.

Following Ogilvie, cases such as Shini noted that the fact that someone did not work post injury did not necessarily mean that they could not work. The WCAB reached back to an old case, Montana v. IAC, to elucidate factors that could be considered in such calculations. These “Montana factors” included ability to work, age and health, motivation to work, opportunities to work, skill and education, the general state of the labor market, and opportunities for persons similarly situated.

Without a vocational expert, a defendant defending against a claim or an attorney prosecuting such a claim, would be hard pressed to present substantial evidence on those issues.

So if anything, voc rehab experts have become more critical in those cases.

That’s also true where the alleged disability is over 70%, where the COLA can entail very substantial financial exposure for defendants. And it’s true where there are issues under Labor Code 4662, which allows workers to present testimony on permanent total disability “according to fact”.

Overall, voc rehab expert testimony is used in a very small number of the system’s cases. But in the cases where it is used, it can be a critical component of the fact-finding process.

That is one reason why the bill as written is of concern to many attorneys and rehab professionals.

In an opposition statement provided to the Senate committee, Jason Schmelzer (California Coalition on Compensation Reform),
Mark Rakich (Assembly Insurance Commitee consultant)and Fielding Greaves (formerly with the CalChamber, now with Assemblyman Pan’s staff) the California board of the International Association of Rehabilitation Professionals noted that:

“While at first blush, this brief statute appears to simply allow for the regulation of vocational expert fees, a more careful review….indicates a time-bomb laden bill that compromises discovery, marginalizes vocational experts and contradicts existing law. The impact of this version of AB 1168 is that qualified, competent and, experienced vocational experts will no longer be available to the parties.”

Notably, the list of rehab professionals signing the position paper include a number of voc experts often used by insurance carriers and self-insureds.

Among other concerns listed by the voc experts are these:
-it would deny voc experts the right to rebut the fee schedule in extraordinary cases
-a conditional payment provision would create significant and uncertain payment for professional services that prejudices expert opinion and obstructs discovery
-it would infringe on independent professional standards used to develop admissible evidence

The current version of AB 1168 can be found here:
http://www.leginfo.ca.gov/pub/11-12/bil … oduced.pdf

The Assembly analysis of AB 1168 is found here:
http://www.leginfo.ca.gov/pub/11-12/bil … _comm.html

As with so many bills that are still in play, it’s unknown exactly what the Brown administration wants or will support in the workers’ comp arena.
Without an official “face” running the operation at the DWC, everything seems to be in play.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

Category: Political developments

Julius Young

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