## Ogilvie: You’re working too hard

If you’re using my Ogilvie calculator for situations involving a 100% earnings loss, you’re working too hard1

If you have 100% earnings loss and WPI less than 45, the Ogilvie adjustment formula will always result in WPI + 18.

Not to worry.  I can make Ogilvie even easier:

The Ogilvie mathematical proof has been available for several weeks for peer review.  I’ve only received positive feedback.2  The above Ogilvie Adjustment Chart has been testing by myself and other workers’ compensation attorneys, but like everything else on this site is provided subject to all legal disclaimers.

Here’s a peek at what they look like:

 Ogilvie Mathematical Proof Ogilvie Adjustment Chart
1. Photo courtesy of lincolnblues []
2. An anonymous source from the DWC actually called it “cool”! []

## Ogilvie: the finger pointing begins

A defense attorney friend of mine called me up yesterday to say (I’m paraphrasing here), “You jackass.  Thanks to your Ogilvie proof every Applicant’s attorney I know is calling me up, gloating, and asking for 18 points on top of the whole person impairment on every case!  Why the hell did you do that???”1   My first thought was of my favorite quote from Swingers.2 What I actually said was something along the lines of:

For the moment, let’s set aside the issue of whether California’s injured workers have gotten a raw deal since SB899.  Suppose there’s an injured worker with a finger injury, stays on temporary disability for two years, and is immediately made permanent and stationary.  If instead they get a 0% WPI, they get nothing.  If they gets a 1% WPI, Ogilvie tells us this person gets a DFEC adjusted WPI of 19%.

Nearly every litigated case involves an extended period of temporary disability and a whole person impairment less than 45.4  Ogilvie effectively removes the first 18% permanent partial disability levels.

I really don’t think the WCAB intended this consequence.  Don’t get upset with me – as long as Ogilvie is the law I might as well make Ogilvie calculations easy for you, right?5

1. Photo courtesy of giuliomarziale []
2. Just for you Ray! []
3. And save \$129.99 in the process []
4. Hell, a permanent irreversible coma is only a WPI of 80. []
5. Remember, just add 18 to the WPI! []

## Guest Article from Vocational Expert Emily Tincher

Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.

Have you got an article on workers’ compensation you’d like to see published?  Drop me a line and let me know.1

Thanks Emily!

P.S. For those of who keeping score at home, this is my 200th post!!!  That’s 200 posts in 357 days or roughly a post every 1.7 days.

1. Photo courtesy of Stephen Cummings []

## Guest Article: Vocational Expert Response to Ogilvie/Almaraz/Guzman

The workers compensation law is founded on the concept of exclusive remedy. In exchange the employer is protected from a civil case. The agreement results in liberal construction. The Trier of Fact has always had the latitude to interpret PD when there are gray areas, and can do so in favor of the worker. The traditional concept is that this is a David and Goliath situation and the system should err in favor of the injured workers.

The new En Banc decisions are a recapitulation of this basic tenet of all workers compensation law. We first saw this in Le Bouef, followed by any number of cases where a PD rating is increased by the WCAB. In cases like Espinoza in the late 80’s, literacy was factored out of the PD rating and considered non industrial. This came up again recently in Hertz, but its really old news.

The new En Banc decision has given the applicant’s attorney more encouragement to challenge the rating. There has always been this ability and the challenge is generally successful, if in fact, the worker is far more disabled than rated. Or far less. I recall the excitement when a case law came out in the late 90’s that said the PTP did not always prevail. The judge simply found the D/QME better science, better clinical evidence and more compelling than a poorly conceived PTP report.

The use of the vocational expert in cases where there is a possible injustice has always been an option for the applicant attorney. The defense will need rebuttal evaluations to ensure that these assertions are fairly reviewed by the Trier of Fact. I am pleased to see the issue raised and the heightened interest in the opinions of vocational experts. There are many pitfalls in the practices and methodologies used. Does interest and motivation factor into ability to work? Is possible to identify the “highest and best” earnings and the “lowest and worst?” Certainly a decent vocational expert can take any side of the argument and present a case of very low, or no earnings, or present a case of higher earnings or no loss of earnings. These are hypothetical evaluations, and the factors must be considered carefully.

Recently I evaluated a young man, age 27, who had an injured hand and could no longer deliver furniture. He was earning \$16.00 per hour. The applicant’s evaluator determined he had no transferable skills and was able to earn only minimum wage. One year later, the applicant had taken a four week course in phlebotomy and was earning \$22.00 per hour, an increase in earning capacity. The software used by vocational experts would never have predicted this outcome. I did however; predict it, as it turned out that the worker had 100 undergraduate units, but no degree. I asserted that with that level of aptitude for learning, he would eventually find his highest and best earning capacity. The evaluation which is limited to D.O.T codes will be open to scrutiny and can be overturned. Only by consideration of all rehabilitation factors is it possible to accurately predict earning capacity.

To contact Emily Tincher, call 415 389 8953 or email her at Emily.tincher@cascadedisability.com.

Emily Tincher is a vocational expert, in practice over 25 years throughout California, as a specialist in workers compensation. She has a Masters in Vocational Rehabilitation Counseling from the CRC certified program at University of Southern California, and was admitted to the American Board of Vocational Experts as a Fellow.

## New WCAB Regs, New EAMS Forms

According to a recent DIR news bulletin on November 17, 2008 the new WCAB Rules of Practice and Procedure were approved by the Office of Administrative Law and filed with the Secretary of the State and (apparently) made effective that same day.  If you haven’t already reviewed the new regulations, now’s a good time.  You can check them using the above links or download it here:

New WCAB Rules of Practice and Procedure (Effective 11-17-2008)

Since the new WCAB rules became effective, the new EAMS forms are now mandatory.  The exceptions named in the above bulletin are:

• There will be a four-week “transition period” in effect through December 12, 2008 during which the “legacy”1 forms will still be accepted.
• Forms requiring multiple signatures will be accepted in “legacy” form as long as the filer establishes that circulation began prior to November 17, 2008. 2
• Unrepresented injured workers will be allowed until February 17, 2009 to use “legacy” forms.
• Unrepresented injured workers who do not have access to a computer or typewriter will be allowed to fill in the new OCR forms by printing using block letters.34

Did you know there’s a handbook for the new Optical Character Recognition EAMS forms?  You can check it out here or download it here:

EAMS OCR Handbook (Rev. 11-24-2008)