It's been a wild ride

Just over a month after oral argument the Court of Appeal has issued their ruling, reversing the en banc decisions of the Workers’ Compensation Appeals Board, annulled the award of permanent disability to Ms. Ogilvie, and remanding the case for further proceedings. [1]

So, what does this new Ogilvie decision mean for us?

1. The calculations from the en banc decisions of Ogilvie I/II are no longer valid.
2. An injured worker can still rebut a scheduled rating in accordance with Costa v. Hardy and L.C. 4660 .
3. An injured worker may rebut a scheduled rating in one of three ways:
   1. Demonstrating “a factual error in the application of a formula or the preparation of the schedule.”  (Ogilvie III, p10-11).  Given the examples provided, probably references proving a defect in the RAND Study 2003 itself.
   2. Demonstrating impairments via LeBoeuf v. W.C.A.B. -style analysis that “the employee will have a greater loss of future earnings than reflected in a rating because, due to the industrial injury, the employee is not amenable to rehabilitation.”  (Ogilvie III, p12).  However, the increased disability must not be “due to nonindustrial factors such as general economic conditions, illiteracy, proficiency to speak English, or an employee’s lack of education.”
   3. Demonstrating “the claimant’s disability has been aggravated by complications not considered within the sampling used to compute the adjustment factor.”  (Ogilvie III, p13).  This appears to be a two-step process of having to prove a complex injury and then proving that the sample for the adjustment factor didn’t account for such injuries or complications.

Download Ogilvie v. City and County of San Francisco, Court of Appeal, A126344, A126427 aka Ogilvie III right now!

1. Photo courtesy of mpieracci

Also not a valid permanent disability rating schedule for 2009

I’ve been getting a lot of questions about the Draft 2009 Permanent Disability Rating Schedule.  There is no 2009 Permanent Disability Rating Schedule. [1]

Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.

Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule.  The biggest change is in the application of the FEC rank adjustment.  Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%.  Additionally, the proposal suggested juggling the various ranks among the body regions.  If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.

Here’s the take-away:

• The 2009 Draft Permanent Disability Rating Schedule was not approved.
• The only official schedule for injuries on or after 1/1/2005 is the current 2005 Permanent Disability Rating Schedule.
• The DEU’s own webpage, updated on 10/2009 as of the date of this posting, doesn’t even offer a link to the 2009 draft schedule.

1. Photo courtesy of wenzday01

• Navigating the EDD website
• Performing the Ogilvie/DFEC analysis on each rating string

If you can rate a report, you can get a PDRater DFEC Rebuttal Analysis Report in less than 2 minutes.

Where do you go from here?

• READ the PDRater DFEC Rebuttal Analysis Report frequently asked questions!
• LEARN how to calculate your own Ogilvie/DFEC  analysis or request a PDRater Report!
• DOWNLOAD a FREE SAMPLE PDRater DFEC Rebuttal Analysis Report!
• GET a PDRater DFEC Rebuttal Analysis Report right now!

Even this guy can do the Ogilvie adjustment calculation in his head

If you’re using my Ogilvie calculator for situations involving a 100% earnings loss, you’re working too hard. [1]

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:

1. FREE Ogilvie Mathematical Proof v0.1.
2. FREE Ogilvie Adjustment Chart v5!

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”!

Smith/Amar Reversed

Oral argument on Smith v. WCAB (California Youth Authority) went forward on Smith out that on April 7, 2009.  Today, we have the result – Smith/Amar has been unanimously reversed by the California Supreme Court in case number S150528.  Download a copy and read it for yourself here:

• Dwight Smith v. WCAB (California Youth Authority) ADJ2444225, ADJ811699, ADJ4137711, GRO16225, GRO16226, GRO16352, 2d Civil No. B190054 (1/16/2007) David Amar v. WCAB (Mel Clayton Ford) ADJ1756915, GOL89438, 2d Civil No. B190655 (1/16/2007)

For more background on Smith/Amar, check out my prior post discussing the oral argument.

PDRater: No Bills!

To this day, most of the e-mails I receive are from people asking me some variation of “No, really, how much does it cost to use these calculators? When am I going to be charged? What’s the catch?”

I intend to keep all the calculators free for anyone who cares to use them. I have built this website because I really do enjoy the hell out of blogging about tech stuff and workers’ comp law, dissecting complex workers’ compensation math formulas, and building something useful to myself and other professionals. This is quite literally how I spend my free time. I’m just that nerdy.

XYZZXSJO2 - The sequel!

Last week I posted about a recent case from the San Jose WCAB that indicated a life pension SAWW[1] increase is applied on the first January 1 after the date of injury.  You can find a download of the XYZZXSJO2 case here.

I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access. [2]

Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator.  The actuarial math involved in performing that calculation is … intense.

As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase.  Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used.  I was pretty disappointed to find this out.

No matter!  Help beta test the new calculator by dropping me a line.  After you’ve given it a whirl, let me know what you think.

1. SAWW means State Average Weekly Wage
2. If you have already helped me out as a beta tester, you already have access to this calculator.

Workers' Compensation Calculator

I had an interesting e-mail exchange with a friend (and fellow workers’ compensation professional) the other day.[1]

We were discussing the impacts of Ogilvie on 2005 schedule ratings.  He had asked me whether I intended to update the 2005 permanent disability rating calculator to include FEC Ranks after the scheduled 8.  I believe he had suggested FEC Ranks 9 through 20.

I have no intention of manufacturing FEC Ranks 9 through 20 for the following reasons:

• Maintaining Standards. The entire point of a rating schedule is to allow a standardized method for calculating disability and expressing those disability calculations.   If I invented my own FEC Rank system beyond the scheduled 1-8 Ranks, I would essentially be creating my own rating calculation system.  I’ve gone to considerable lengths to ensure that the rating strings produced by these permanent disability calculators are as standardized, recognizeable, and universal as possible.
• FEC Ranks are Irrelevant. The FEC Rank system is a simplified method of applying DFEC adjustment factors.  When you use the FEC Rank of a particular body part to adjust the standard using the charts on pages 2-6 and 2-7 of the 2005 PDRS (permanent disability rating schedule), what you’re really doing is essentially multiplying your standard disability against the FEC adjustment factor associated with the particular FEC Rank for the body part in question.  An FEC Rank is only useful for telling you the appropriate FEC adjustment factor to apply to the standard disability.  Thus, FEC Ranks are irrelevant and FEC adjustment factors are all important.
• Arbitrary FEC Ranks. FEC Rank 1 has an FEC adjustment factor of “1.100″.  However, using the Ogilvie DFEC rebuttal formula, it is possible to end up with very low FEC adjustment factors.  In extreme circumstances it would be possible to have a negative FEC adjustment factor.  The only way to resolve this would be to have several possible negative FEC Ranks.  Besides being somewhat silly, worrying about additional FEC Ranks[2] misses the point.  If you’re using the Ogilvie DFEC rebuttal formula properly, the result will be a new FEC adjustment factor.  If you already have the FEC adjustment factor, you have no need for the FEC Rank!

When I had discussed the impact of Ogilvie earlier, I had pointed out that in some cases the resulting formula will dictate that you use a different FEC Rank than the one indicated by the affected body part.  In other cases you will need to use an entirely new FEC adjustment factor.  In order to keep the 2005 disability calculator current I will eventually have to create a way for the user to override a body part’s standard FEC Rank and specify a new FEC Rank or their own FEC adjustment factor.

I’m not in any particular rush to develop this feature since Ogilvie seems to require three years of post-injury earnings.  I doubt we’re going to see litigation begin in earnest over Ogilvie issues for another 18 to 24 months.

1. Photo courtesy of Street Fly JZ
2. Both higher and lower than the normal 8

Combined Values Chart for the 2005 PDRS

A few weeks ago I posted about the Multiple Disabilities Table for combining disabilities with injuries prior to 2005.

For injuries after 2005 we must turn to the 2005 Permanent Disability Rating Schedule.  When combining disabilities for injuries after 2005 there are several possible alternatives.  You can:

• Open up your copy of the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition to pages 604 through 606.
• Open up your copy of the 2005 Permanent Disability Rating Schedule to pages 8-1 through 8-4.[1]
• Reverse engineer the combined values formula from the three pages of 4 point font in the Combined Values Chart.[2]
• OR, my personal favorite, take 30 seconds to sign up for free and use the combined values chart calculator whenever you want!

1. In case you’re wondering, the chart on the right is a super-condensed version of the Combined Values Chart on pages 8-2 through 8-4.
2. Honestly, I don’t recommend this.  It wasn’t fun.

California Court of Appeals, First Appellate District

The First Appellate District of the Court of Appeal of the State of California has affirmed the Workers’ Compensation Appeals Board in Benson v. WCAB and the Permanente Medical Group, affirmed (2/10/2009).  The Court of Appeals held, in relevant part, that “[t]he Wilkinson doctrine is inconsistent with the apportionment reforms enacted by Senate Bill No. 899.”

The basic upshot is that barring “limited circumstances” each distinct industrial injury will require its own Award.

First Ogilvie and Almaraz/Guzman, now Benson?  Its been an exciting two weeks to be a Workers’ Compensation attorney.

Office of the Clerk

Professor, tell me more of this DFEC rebuttal calculator...

Earlier today I installed an Ogilvie v. City and County of SF DFEC Rebuttal calculator into the free workers’ compensation calculators page on this website. [1][2][3] For the moment it is only available to people who have signed up for this website and asked to be a beta tester.  If all goes well, I’ll flip a switch and make it available to the public on Monday morning.

At the moment it requires four pieces of information:

1. FEC Rank (re: body part in question)
2. Standard disability (re: body part in question)
3. Post-injury earnings for Applicant
4. Post-injury earnings for employees similarly situated to Applicant

Once you add in that information, click “Calculate” and it should crunch through the formula and give you a response.  The WCAB in Ogilvie suggested several possible outcomes to this formula:

• The “Individualized Loss Ratio” for the injured worker is the same or within the range for the current FEC Rank for the affected body part.  In this circumstance, the 2005 DFEC has not been rebutted.
• The “Individualized Loss Ratio” for the injured worker is within the range of one of the other seven FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.
• The “Individualized Loss Ratio” for the injured worker is outside the range of all eight FEC Ranks.  In this circumstance, you could end up with a new FEC Adjustment Factor much higher or lower than any FEC Adjustment Factor associated with the eight FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.

Obviously, there are innumerable factors that go into considerations of whether a Judge (or the WCAB) would find the DFEC portion of the 2005 Permanent Disability Rating Schedule to be rebutted.  This calculation and the information relied upon in performing this calculation cannot be taken as a guarranteed method of rebutting the DFEC portion of the 2005 Permanent Disability Rating Schedule.

If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  That’s right: free as in free.

1. Photo courtesy of Draggin
2. I had this EXACT same calculator as a kid!
3. Why, how did you spend your Friday night?

What's the WCAB doing NOW???

UPDATE 9/3/2009:  Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

Need a FREE sample Ogilvie analysis brief complete with citations?

Some crazy stuff has happened in the last two days.  [1] Two big en banc decisions were just handed down from the WCAB. Here they are, hot off the presses and ready for downloading:

• Wanda Ogilvie v. City and County of San Francisco, ADJ1177048, SFO 0487779, (en banc) (2/3/2009)
• Mario Almaraz v. Environmental Recovery Services (a.k.a. ENVIROSERVE) and State Compensation Insurance Fund, ADJ1078163, BAK 0145426 (en banc) (2/3/2009) and Joyce Guzman v. Milpitas Unified School District and Keenan & Associates, ADJ3341185,  SJO 0254688 (en banc) (2/3/2009)

Of the two cases, I enjoyed Ogilvie v. City and County of San Francisco much more.  This case describes to what extent the 2005 Permanent Disability Rating Schedule may be rebutted[2] and how one might go about doing this.

Pages 22 through 32 are basically nothing but math. [3]  These pages detail the information and methodology necessary to rebut the DFEC portion of the 2005 Schedule.

Last night I wrote a prototype calculator which will allow you to determine whether you may or may not be able to rebut the DFEC portion of the 2005 Permanent Disability Rating Schedule.  This calculator would only perform the DFEC rebuttal calculations suggested in the majority opinion, since this is now the law of the land.  My plan is to test it this weekend and launch it Monday.

However, if anyone is interested in helping me test it, I would appreciate the help.  Just drop me a line and I’ll give you the link as soon as its ready.

In the meantime, if you want to crunch the numbers yourself (or follow along with the WCAB in Ogilvie), you will probably find Table A and Table B page 1-7 of the 2005 PDRS to be very helpful.

FYI, there are a lot of “footnotes” in Ogilvie that reference various online documents or websites.  I’ve downloaded a copy or provided a screenshot of each of these pages for your reference:

• FN12a PDRS Initial Statement of Reasons
• FN12b 2003 RAND Study
• FN12c 2004 RAND Study
• FN17 LMID EDD Website – Need More? Just Ask!
• FN18 LMID EDD Website – Homepage
• FN19 LMID EDD Website – Single Quarter Information
• FN20 LMID EDD Website – Occupational Profile
• FN21 LMID EDD Website – Occupational Wages Data Search Tool
• FN23 LMID EDD Website – Customized Reports
• FN27 Newsline No. 66-08

1. Photo courtesy of Kyle Kesselring
2. Basically just the DFEC portion.
3. Yay!

Block Letters

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.[3][4]

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)

1. Read: non-EAMS
2. I suppose the easiest way to demonstrate this is to point out that at least one of the signatures was dated prior to 11/17/2008.
3. Though, I suppose printing clearly in all-capital letters migh work better…
4. Photo courtesy of Thomas Hawk.

This puppy has nothing to do with this post whatsoever.

Last Friday I announced some “website tweaks.”  Since then a paid subscriber[1] reiterated a feature request.[2] As a paid subscriber, he is able to calculate an unlimited number of ratings so that they all show up on a single page.  Basically, he wanted to be able to see the dollar value for a particular permanent partial disability percentage at the same time as a rating.

This isn’t the first time I’ve wrestled with the problems in creating such a feature.  There are several problems with incorporating this feature into the calculator’s page.

1. The rating calculator and the dollar value of permanent disability calculators cannot be open at the same time.
2. The rating calculator does not require the date of injury, just the age of the injured worker.  Without the date of injury, the website cannot properly display the dollar value of a permanent partial disability percentage.
3. When a paid subscriber has performed more than one rating calculation on a page, the website cannot decide which rating string to convert into the equivalent number of dollars.

This exact feature had been suggested by other users in the past.[3]  My original thinking was that trying to accommodate this feature request would involve too many unknown variables.  After giving the matter some more thought, here’s what I’ve come up with:

• Paid subscribers benefit from improved print formatting. Basically, I’ve created a special file that changes the way the calculator page looks when a paid subscriber is printing. [4]  Paid subscribers benefit from having the calculator page streamlined specifically for printing.
  • Sample Printout for Free Subscribers.
  • Sample Printout for Paid Subscriber.
• Paid subscribers can have more than one calculator open at a time. This one feature probably addresses 90% of this user’s concerns.  If you’re able to keep both calculators open at the same time, it should be easy to perform a rating and then turn the percentage into a dollar value.
• Paid subscribers receive automatic calculations of dollar value of ratings. When a paid subscriber performs a rating calculation, the “Dollar Value of Permanent Disability” calculator automatically opens and the dollar value of the rating is automatically calculated.  The user will still have to adjust calculation to account for the year of the injury.  However, this is probably the most elegant solution to this issue.

1. As opposed to a free subscriber
2. Thanks Marc!
3. And even some competitors!!!
4. The special file is actually just some CSS to optimize page for printing.

1. Links to online Medical Provider Network lists of physicians for a lot of different carriers
   • Click on “Medical Provider Network Links”
2. The ability to search for occupational codes by the occupational title or to search for an occupational title by occupational code
   • Click on “Rating Calculator” and then “Occupation”
3. Links to free searchable versions of the California Labor Code and California Code of Regulations
   • Click on “Workers’ Compensation Resource Links”
4. Links to the State of California search pages for medical doctors, chiropractors, osteopaths, podiatrists, accupuncturists, optomotrists, psychologists, and dentists
   • Click on “Physician Search Links”
5. Downloads for numerous Permanent Disability Rating Schedules – 1988, 1997, 2005, and the draft for 2009
6. Combined Values Chart / Multiple Disabilities Table calculators
   • Click on “Rating Calculator” and then “CVC” or “MDT”
7. A list of Commonly Used Terms in California Workers’ Compensation law

What’s that?  I only promised the top five PDRater.com features?  Don’t tell me you haven’t heard of the first rule of business:  Under promise and over deliver.

Happy Friday!

• Learn More About EAMS (3 pages)
  • Revised 08-21-2008
  • Paper filings, CD filings of pre-scanned documents
• Priority of Actions After EAMS Go-Live (1 page)
  • Walk throughs are second to last in priority!
• EAMS is Ready, Are You? (4 pages)
  • Revised 08-01-2008
  • Discussion of training, OCR, and E-forms

I also learned some interesting things about EAMS:

1. Everyone knows that EAMS and the WCAB will reject your filings if you’re not registered with EAMS. Did you know that the Judges aren’t sure if EAMS will reject your filings if the employer is not registered?
2. If a party brings physical paper exhibits, Judges will only be accepting the most important documents for filing (since the WCAB will be doing the scanning)
   • The parties will be expected to bring any possibly relevant exhibits. Any documents not accepted will be returned to the parties or shredded.
   • Judges will mainly be accepting just permanent and stationary reports.
3. A party bringing a CD burned with scanned exhibits, will need to submit all medical files and documents which are typically required to be filed with the WCAB.
   • They will will not have the option of only submitting the most relevant exhibits.
4. For the time being, normal walk through procedures are gone. Any new case activation would not be assigned a Board number until approximately 3 am after the day of submission. Be ready to drop off your walk throughs the day before you want to obtain approval.
5. The EAMS forms haven’t been approved by the Office of Administrative Law and won’t be mandatory until approved.
6. For the time being, every Board will have a telephone conference each morning starting at 8 am with their “command center.”
7. The decision to go ahead with EAMS starting August 25, 2008 was only made on August 22, 2008!

There are new forms for:

• Compromise and Releases
• Stipulations with Request for Award
• Minutes of Hearing
• Declaration of Readiness to Proceed
• Disability Evaluation Unit (DEU) forms and regulations
• Retraining and Return to Work (RRTW) forms and regulations

Those wishing to comment can send their thoughts as follows:

• Attention: Maureen Gray, regulations coordinator
• By fax: (510) 286-0687
• By e-mail: dwcrules@hq.dir.ca.gov

There’s a physical mail address as well – but with EAMS around the corner, shouldn’t you get used to e-mail?

In late 2004 I spent some of my free time working on a calculator for the 1997 Permanent Disability Rating Schedule 100% pure javascript (the only programming language I knew at the time). I had several reasons for never publicly releasing this calculator:

• Uniformity. Not all computers and browsers perform all javascript functions the same way.
• Speed. A pure javascript calculator would require the user to download all of the code – not just the parts they needed.
• Protection. Anyone with a modicum of technical knowledge could simply downloaded the calculators, and then post it as their own.
• Obsolete. With SB 899 and the 2005 Permanent Disability Rating Schedule, my calculator became nearly obsolete. I scrapped it rather than building a second calculator.

The current workers’ compensation benefits calculators use very very little javascript. Doing so has meant that I don’t have to worry about different computers/browsers, users only need to download the code they need to run a single calculation, and my calculators don’t work without my server.

Next up, PHP!