Let's see... "TAX+" or "TAX-"

Here’s a pro-tip for you Applicant attorneys.  Some insurance companies and TPA’s are actually unable to issue payments to entities unless they have their Tax ID number.  Making it easy for defendants to issue payment means you’ll get paid sooner.[1]

Here are the top three ways to get paid sooner:

• Put your Tax ID number on the settlement documents
• Put your Tax ID number on your website
• Make sure your receptionist has your Tax ID number ready to give out
• Put your Tax ID number in your automated voice mail message

1. Photo courtesy of Phillip

Look up! Dates!

A few weeks ago I e-mailed an Applicant attorney friend of mine[1] and got back a one word response.  I jokingly chided him for being so chatty.  His response was thus:

No new blog = minimal response

Well, for Z and everyone else out there, here’s a new blog post![2]  Over the weekend I updated several aspects of the website. [3]  Here’s a short summary:

1. Updated MPN / Medical Provider Lists.  I’ve added a lot more MPN names, links, and passwords.  If you have some new ones, please send them over.  I’ve also improved the link structure to help prevent broken links.
2. Updated workers’ compensation calculators.  I’ve added a few small features that should make the calculators work a little better.
3. Improved site speed.  I’ve added a little extra website-internet-magic-mojo that should improve the entire site’s performance.
4. Something new!  I’m working on a brand new calculator.  If you like playing with calculators, kicking-tires, and dishing out criticism, drop me a line and ask to be a beta tester.
5. Finally, if you see any weirdness over the next few days, please drop me a line and let me know so I can take care of it!

But, enough about me!  How are you?

1. I’ll call him “Z.”
2. There are two kinds of blog posts I really hate to read.  Blog posts that apologize for infrequent posting and blog posts that talk about the frequency of blog posts.
3. Photo courtesy of Agent Smith

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 The calculations from the en banc decisions of Ogilvie I/II are no longer valid.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

What has two thumbs and loves to hear itself talk? THIS GUY!!!

There was a great turn out this morning to the “How to Obtain an Accurate PD Rating with the AMA Guides” put on by the Workers’ Compensation Section of the State Bar.  We covered a lot of ground in just two hours, from the DEU perspective presented by Annalisa Faina and Barry Knight entitled “Anatomy of Rating”, to Mark Gearheart’s “Substantial Medical Evidence to Support a Permanent Disability Rating,” and my own presentation on “Litigating Ogilvie.”  There was a lively discussion on the state of Almaraz/Guzman, Blackledge, and Ogilvie. [1][2]

Thanks to everyone who e-mailed me asking for the cases cited during our presentations.  I’ll be uploading them shortly.

Tonight is the “2010 Steve Jimenez Special Recognition Awards” honoring:

• Lifetime Achievement: The Honorable Pamela Foust (Ret.)
• Judge of the Year: The Honorable Jorja FrankHon. Jorja Frank
• Applicant Attorney of the Year: Marc Marcus
• Defense Attorney of the Year: Michael Marks

If you’re attending tonight, please stop me and say hello!  (I’ve got a name tag and everything)

1. Lively as in “barely civil”
2. I’m kidding!

Three doctors is probably just plain excessive. And more than a little creepy.

My prior record for doctor depositions was three in one month.  This was not at all intentional.  It was probably a number of factors.  I tend to take more doctor depositions than most.[1] Almaraz/Guzman issues are usually best addressed during a deposition.  And, lastly it just happened to be an extra busy month.

This week I attended three doctor depositions (two set by myself, one set by a co-defendant).  I’d say that pretty well trumps three in a month.  :)

A special shout-out goes to Doctors Z, J, and C.  Thanks for putting up with me guys.  Also, special thanks to Mr. W, my co-Defendant without whom this wouldn’t have been possible.

1. Photo courtesy of Little Miss no Name.  Photo editing – all me!

Back in Sac!

I’m at the Sacramento WCAB this morning, so why not stop me and say hello?

Favorite deposition question: Doctor who?

For those of you keeping score at home, I’ve posted my personal records for the most walk throughs at different Boards in one day (3), most bridges crossed in one day (3), most bridge tolls paid in one day ($10), most bridges crossed without paying tolls legally (2), and now… depositions of doctors.[1]

I probably tend to take more doctor depositions than most.  I’ve normally got about one or two on calendar each month.  However, this month has been a personal record with three depositions of doctors.[2]

I seriously doubt any other workers’ comp attorneys keep track of this sort of thing.

1. Photo courtesy of BBC and TVScoop
2. Does this count as a professional record?

There now, don't you feel better?

Psychologists at the University of Minnesota have discovered that thinking about money, such as counting out bills, actually reduces peoples’ perception of pain. [1]  They also discovered the opposite holds true – being reminded of money you do not have increases the perception of pain.  But, here’s the really wild part – even “[m]erely touching cash or even staring at a money-filled screensaver could blunt the impact of hard or painful events.” [2]

Modified duty as a cashier just got a lot more interesting.

1. Photo courtesy of sam b-r
2. Thanks slashdot!

1. Ogilvie Formula
   1. Ogilvie formula (longhand)
      1. Each of the steps in the Ogilvie formula explained
   2. Ogilvie formula (shorthand)
      1. Mathematical proof demonstrating a simplified Ogilvie formula
      2. Download the simplified Ogilvie mathematical proof as a PDF here
   3. Ogilvie formula (oversimplified)
      1. Learn how to perform an Ogilvie calculation in your head in 5 minutes (PDF download)
   4. Ogilvie formula (18 point rule)
      1. Read the Ogilvie “18 point rule”
      2. Download the Ogilvie “18 point rule” as a handy PDF
2. Ogilvie Case Law
   1. Ogilvie v. WCAB I (en banc) 2/3/2009
   2. Ogilvie v. WCAB II (en banc) 9/3/2009
   3. Bowden v. Sunray Termite San Jose WCAB Panel Decision ADJ4536632
      • Commissioner Miller letter dated 1/13/2010 to Defense attorney on Bowden v Sunray Termite
   4. Shini v. Pacific Coast Auto Body & Truck San Diego WCAB Panel Decision ADJ2079252 (1/25/2010)
   5. Ochoa v. UPS Ground Freight Order Denying and Report and Recommendation on Reconsideration ADJ1758338 (2/8/2010)
   6. Bertha Noriega Garcia v. Patrick L. Hinrichsen WCAB Panel Decision ADJ6721939 (3/1/2010)
3. Litigating Ogilvie
   1. Argonaut Ins. Co. v. Ind. Acc. Com. (Montana) (1962) 57 Cal.2d 589
4. Applicant Attorney Ogilvie Handbook
5. Defense Attorney Ogilvie Handbook
6. Appendix
   1. EDD Labor Market Information Division
   2. Cal. Labor Code § 4651 “Average annual earnings shall be taken as fifty-two times the average weekly earnings referred to in this chapter.”

Sample Ogilvie DFEC analysis brief, complete with citations, explanations, and exhibits

Old Town Salinas

I’ve got a hearing at the WCAB in Salinas this morning.

If you’re around this morning, stop me and say hello!

Driving under the influence

Yesterday I was driving back from Modesto and I noticed a CHP officer out of the corner of my eye. [1]  My first instinct is always to double check my speed.

However, yesterday afternoon I noticed this officer was on his cell, left elbow propped up on the edge of the window, yakking away, while tailgating a semi in the slow lane.

Not wanting to get pulled over for driving under the influence of irony, I didn’t take a picture with my phone.

BTW, I’ve got to be in San Francisco this afternoon – stop me and say hello!

1. Photo courtesy of OregonDOT

Free pass

Yesterday I had an appearance in San Jose and then another up in San Rafael.  From San Jose I drove up through San Francisco, northbound over the Golden Gate Bridge, to my appearance, then back over to Contra Costa County via the Richmond Bridge.[1]

Wait for it…

The Golden Gate is only toll southbound and the Richmond is only toll westbound.  I traveled over two bridges and didn’t pay a single toll!

1. Photo courtesy of worldsurfer

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

This sign is ALSO not a stay on Ogilvie

I’m still getting e-mails suggesting that Bowden v. Sunray Termite is a WCAB Panel decision staying Ogilvie. [1]  Thanks to some loyal readers, I now have a copy of this Panel decision:

1. Photo courtesy of loop_oh

• 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!

An early Christmas for PDRater users!

I plan to launch a brand new calculator service tomorrow.[1]

I think you’re really really going to like it.

Want a hint?

It’s going to help you with a case that rhymes with “Schmogilvie.”

1. Photo courtesy of The School House

T'was the night before Christmas... and the check still had not arrived.

I was waiting on two attorneys walking through a settlement last week while at the Oakland Board.  Applicant’s counsel had added some unusual language. [1] The Judge read it aloud to the hearing room:

Defendants shall make payment before Christmas.

Oh, and… the Applicant was Jewish.  :)

1. Photo courtesy of Joriel “Joz” Jimenez

It looks like someone took a SAWW to that COLA!!!

You’re probably just here to download the latest workers’ compensation case about the Cost of Living Adjustment and State Average Weekly Wage increases. [1][2] I’m not going to hold you in suspense – here’s the download link:

Obviously, you need to read the entire decision for yourself.  Here’s my oversimplification of the case:

Whenever the injured worker is due life pension payments for injuries on or after 1/1/2003, you calculate those benefits, whenever they are due, by increasing them according to the yearly increases in the state average weekly wage starting on 1/1/2004.

If some of this seems familiar, its because this is the same case as XYZZXSJO2 which came out back in February 2009.   I had suggested back in February that the effect of the COLA increases on life pension payments today would be to increase them some 44% or so.

Still having trouble understanding the impact of this case?  Well, you could try my XYZZXSJO2 calculator to tell you what the life pension rate should be during a given year.  (Remember, this just tells you the rate – it is not a commutation calculator.  These are still in the works).

What are your thoughts on Duncan v. WCAB?

1. Photo courtesy of Sister72
2. I refuse to apologize for that pun.

Q: How do you build the case for a DFEC rebuttal? A: One step at a time.

There’s a lot of conflicting information about what Judge’s are requiring to making a finding of a DFEC rebuttal under Ogilvie v. City and County of S.F.. [1]  The Board in Ogilvie II is explicit that all you need is post-injury earnings information for the injured worker and similarly situated employees and “simple mathematical calculations with that wage data” using a “non-complex formula.”[2]

Unfortunately, calling a process “simple” and “non-complex” doesn’t necessarily make it so.  Apparently some Judges are requiring some additional showing beyond wage data and “simple calculations.”

What are Judges in your area requiring?

• Just wage data and calculations?[3]
• Vocational testimony/evidence regarding earnings?
• Proof of attempts to seek employment/motivation?
• Something else?

Share your insight with an e-mail or comment.

1. Photo courtesy of eliaspunch
2. Ogilvie II, p1-2.
3. Perhaps just a print-out from PDRater?  ;)

Success??? Where do I sign up?

In my tradition of sharing my fortunes[1] with you, I present my latest fortune cookie fortune.

I like to think I earned this one.  I ordered mu shu from the same place as last time.  So far so good.

TMI?

1. Both good and bad…