Trial today
If you happen to be at the WCAB in Stockton, stop by and say hello.
Chance are I’ll be there most of the day. Any good spots for lunch?
Month: September 2009
Is Ogilvie II worse for Defendants than Ogilvie I?
You may not want to hear this, but Ogilvie II is probably worse for Defendants than Ogilvie I. ((Photo courtesy of Lawrence Whittmore)) Check out page 32:
if within five years of the date of injury it later becomes clear that the employee’s individualized proportional earnings loss is significantly higher or lower than anticipated, a party may seek to reopen the issue of permanent disability by challenging the originally used DFEC adjustment factor.
I think we can expect to see a petition to reopen on any case that settled prior to 2/3/2009. ((February 3, 2009 is the day Ogilvie I came out.))
I Just Make It Look Easy
A company once told me someone had offered to build permanent disability calculators for their website in three months for $7,500. One said six months and $20,000. Recently, another suggested it would take them a year and $40,000. My response is usually some variation on “You’ve got to take that deal. You’re wasting your time talking to me.”
It’s no big secret that building a great product takes a lot of work. The important thing to remember is that just because something is easy-to-use, that doesn’t mean its easy-to-make. ((Visit the link for a PDF of a cut-and-fold iPhone. Thanks Gizmodo!))
Let’s take the iPhone for example. Everyone will concede its an easy phone to use. However, it was released more than two years ago on 6/29/2007. ((Wikipedia link.)) In that time the other players – BlackBerry, LG, Nokia, and Palm have all been trying to catch up. If this easy-to-use phone were easy-to-build everyone would have their own version.
Look, there’s no special magic to building a website like this. Really, anyone can do it. All you have to do is learn the calculations inside-and-out, deconstruct the math involved in the various calculations, learn some client and server side programming languages, learn a content management system, make it all work together, keep current on changes in the law, start all over again each time the law changes, and earn the respect of the workers’ compensation community. Once done, you’ll have your very own workers’ compensation calculator website!
To return to the lesson of the iPhone, building a touch screen phone that can play music and surf the web is totally doable. Doing it right is another matter entirely.
Ogilvie II, Almaraz/Guzman II – Reader Digest Versions
First off, if you haven’t already downloaded Ogilvie II and Almaraz/Guzman II, do so now!
As I mentioned previously, each of these cases is about 50 pages long, so there is clearly no substitute for reading them for yourself. However, here’s Ogilvie II and Almaraz/Guzman II in five sentences: ((Photo courtesy of Scallop Holden))
- Ogilvie v. WCAB II:
- The WCAB ruled the original Ogilvie (I) formula is still valid.
- The WCAB appears to have created a right to reopen a case for “individualized proportional earnings loss.”
- Vocational testimony is not an appropriate way to dispute the DFEC portion of the 2005 Permanent Disability Rating Schedule.
- (Bonus Dissent Summary: The lone dissent by Caplane says that vocational testimony should be considered proper rebuttal to an entire permanent disability rating.)
- Almaraz/Guzman II:
- The WCAB ruled that a doctor must issue reports within the “four corners” of the AMA Guides 5th Edition to comply with Labor Code Section 4660(c). ((Here, the phrase “four corners of the AMA Guides” just means the parties are restricted to the actual text of the AMA Guides and cannot use analogies and evidence from outside the AMA Guides.))
- However, either party may obtain rebuttal evidence in the form of supplemental reports and depositions regarding the use of any other chapter, method, or table within the AMA Guides.
- (Bonus Dissent Summary: The dissenting opinion from Brass, Caplane, and Moresi says they would affirm their decision in Almaraz/Guzman I.)
What do these cases mean for the practitioner?
- The WCAB has created a new right to reopen for a higher than expected “individualized proportional earnings loss.”
- The Ogilvie Mathematical Proof of 18 Point Add-Ons still stands.
- I see even more doctor depositions in my future.
- My phone is going to be ringing off the hook tomorrow.
Ogilvie II, Almaraz/Guzman II – More En Banc Opinions!
Need a FREE sample Ogilvie analysis brief complete with citations?
The Workers’ Compensation Appeals Board is back with their en banc decisions on Ogilvie and Almaraz/Guzman after reconsideration. ((Photo courtesy of arturodonate)) Download the Ogilvie/Almaraz/Guzman decisions all in one place:
Each of these four is about 50 pages. Read them carefully, there will be a test later.