Now THAT's an old schedule case!

I heard the best workers’ compensation joke yesterday. [1]  Here goes:

• “Is this an old or new schedule case?”
• “Of course it’s old schedule.  Just look how old it is!”

1. Photo courtesy of dklimke

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

Almarez/Guzman: Full steam ahead

Yesterday the 6th Appellate District of the California Court of Appeal issued a Writ of Review, denied Defendants’ request for a stay, and indicated that the matter would be set for oral argument. [1]  If you would rather just read what they have to say, here it goes:

Petitioner’s request for a stay is denied. Petitioner’s request for judicial notice, filed on 10/16/09 is denied. The petition for writ of review is granted as follows: Let a writ of review issue ordering the WCAB to certify & return to this court is official record in Guzman v. Milpitas Unified School District & Keenan & Associates, WCAB case No. ADJ3341185 (SJO0254688), not later than 3/25/10. Respondents may file opposition on 3/25/10. Petitioners my reply to the opposition in 20 days after the opposition is filed in this court. The matter will be placed on calendar at a time & place to be specified by court order. Any party desiring oral argument shall so inform this court in writing on 3/25/10 by completing & returning to this court the attached “request for oral argument” form (P, E, WD)

What does this mean for you?  Well, it means at least another four months of Almarez/Guzman II.

The fastest I recall a case going from the granting of a Writ of Review to to Order after oral argument was about four months.  In that case (Rollick) the Court of Appeals had basically already made up their minds about the issues and had allotted each side 10 minutes of argument.  The oral argument in that case took place about four months after the Writ was granted and Order issued almost immediately after argument.  However, the issues presented by Almarez/Guzman II are considerably more intricate.

For more analysis on this decision check out the article on WCExec!

1. Photo courtesy of jjjohn.

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

If you can use duct tape, you can perform an Ogilvie DFEC analysis in 5 minutes

An Ogilvie / DFEC analysis isn’t really difficult, especially when this website has a free Ogilvie / DFEC calculator.[1] The problem comes when you have to prove all the math behind those calculations.  This involves “showing your work.”

The best way to “show your work” is to take the reader through each step of the Ogilvie analysis.  I’ve prepared a sample report (generated using a new service on this website) which provides a clear and easy to understand format for “showing your work.”

The steps are basically this:

• Step 0:  2005 PDRS rating string
• Step 1: Post-Injury Earnings of Applicant
• Step 2: Post-Injury Earnings of Similarly Situated Employees
• Step 3: Calculate Proportional Earnings Loss
• Step 4: Calculate Individualized Rating to Loss Ratio
• Step 5: Compare Individualized Rating to Loss Ratio to range of ratios for the FEC ranks

For those interested, here’s a more detailed explanation of each step in an Ogilvie / DFEC analysis.

When each step of the Ogilvie / DFEC analysis is stated clearly, the reader can see every assumption, step, and perform their own calculations to verify your conclusions.  As long as the parties agree on the numbers used in an Ogilvie / DFEC calculation, they should always arrive at the same result.

Setting forth every single step of your Ogilvie / DFEC analysis lets you to spend less time arguing about the impact of Ogilvie and more time trying to get the case settled.

1. Photo courtesy of indigotimbre

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?  ;)

Back to the drawing board

DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!

A little while ago William S. Morris, an Applicant’s attorney, told me that the Ogilvie adjustment calculation could be further simplified. [1] He suggested the following[2] :

1. Earnings Loss[3][4]
   1. L = (PIESSE – PIEA) / PIESSE
2. Individualized Proportional Earnings Loss
   1. = (WPI / L) / 100
3. DFEC Adjustment Factor
   1. = ([1.81/a] * .1) + 1
   2. = ( (1.81 * .1)/a) + 1
   3. = (.181/a) + 1
   4. = 1 + (.181/a)
4. Ogilvie DFEC Adjusted Rating
   1. = WPI * DFEC Adjustment Factor
   2. = WPI * (1 + (.181/a) )
   3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
   4. = WPI * (1 + (.181 / ( (WPI / L) / 100) ) )
   5. = WPI * (1 + (18.1 / ( (WPI / L)  ) )
   6. = WPI * (1 + (18.1 * (L/WPI) ) )
   7. = WPI + (18.1 * L)
5. Conclusion
   1. If the injured workers’ individualized proportional earnings loss is outside all of the FEC ranks, you may calculate the Ogilvie adjustment by adding (18.1*Earnings Loss) to the WPI.

The only flaw with the proofs offered by William and myself is that they are too exact.  The WCAB in Ogilvie never sets forth the exact process for performing the Ogilvie adjustment calculation – so the only official method involves rounding to different significant figures at different places.  Thus, a calculation performed in strict accordance with the WCAB in Ogilvie and through one of these mathematical proofs would differ very slightly.

What do you think? Leave a comment or drop me a line.

1. Photo courtesy of Dahveed76
2. I’m paraphrasing here
3. PIESSE = Post Injury Earnings of Similarly Situated Employees
4. PIEA = Post Injury Earnings of Applicant

Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions.  The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.

As far as I can tell, the WCAB[1] in Ogilvie II basically flip flopped on the role of vocational experts.  Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.[2]

The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.

This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.

1. Well, eight of the commissioners anyhow.
2. I received more than one letter demanding agreement to a vocational counselor under Ogilvie I.

Don't cry - you had a good run

You may not want to hear this, but Ogilvie II is probably worse for Defendants than Ogilvie I.  [1]  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. [2]

1. Photo courtesy of Lawrence Whittmore
2. February 3, 2009 is the day Ogilvie I came out.

Ogilvie and Almaraz/Guzman - let's cut to the chase

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:[1]

• 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). [2]
  • 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.

1. Photo courtesy of Scallop Holden
2. 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.

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”!

I think we can dispense with the caption, just this once...

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:

• It’s not like CAAA wouldn’t have found out about Ogilvie if it wasn’t for Jay Shergill mentioning it in a blog post.
• Nothing has changed except that now anyone can perform an Ogilvie adjustment calculation in their head.[3]
• Someone was going to prove that Ogilvie adds 18 points to the WPI in virtually all litigated workers’ compensation cases, so it might as well be me.

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!

Ogilvie for Dummies

UPDATE: DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!

Get ready to stop paying people to do Ogilvie calculations, recycle your Gearheart/Gerlach handouts, and delete your Frost Excel spreadsheet.[1]  We’re about to go all “Beautiful Mind.”

Yesterday while at the Oakland WCAB an Applicant’s attorney mentioned he noticed an interesting trend in the Ogilvie formula. [2][3] He said that whenever he does an Ogilvie calculation for someone with a 100% earnings loss and a modest WPI, the WPI is always increased by 18. [4]

I ran a number of test calculations on this theory and it appeared to be right.  My calculations show that up to a WPI of 44 the increase appears to always be 18.1, but the last “0.1″ always gets rounded down.  However, appearing to be right just isn’t good enough for me.  And, because I am just truly that nerd, here’s the fully mathematical proof:

Let’s break down the calculations at the heart of Ogilvie:

1. Earnings Loss[5][6]
   1. = (PIESSE – PIEA) / PIESSE
   2. = ($1.00 – $0.00) / $1.00
   3. = $1.00 / $1.00
   4. = 1
   5. = 100%
2. Individualized Proportional Earnings Loss
   1. = (WPI / Earnings Loss) / 100
   2. = (WPI / 100% )/100
   3. = (WPI / 1) / 100
   4. = WPI / 100
   5. Thus, for any WPI less than 45 and a total loss of earnings, the Individualized Earnings Loss will always be less than 0.450 in Table A.
3. DFEC Adjustment Factor
   1. = ([1.81/a] * .1) + 1
   2. = ( (1.81 * .1)/a) + 1
   3. = (.181/a) + 1
   4. = 1 + (.181/a)
4. Ogilvie DFEC Adjusted Rating
   1. = WPI * DFEC Adjustment Factor
   2. = WPI * (1 + (.181/a) )
   3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
   4. = WPI * (1 + (.181 / (WPI / 100) ) )
   5. = WPI * (1 + (.181 * 100 / WPI ) )
   6. = WPI * (1 + (18.1/ WPI ) )
   7. = WPI * ( (WPI/WPI) + (18.1/ WPI ) )
   8. = WPI * (WPI + 18.1/ WPI )
   9. = WPI * (WPI + 18.1/ WPI )
   10. = WPI + 18.1
5. Conclusion
   1. If you have an Applicant with a 100% post injury earnings loss and a WPI of 44 or less, you should rebut the FEC and arrive at an adjusted WPI that is equal to the original WPI plus 18.1.

Therefore, I propose a new Ogilvie formula that will be easy for anyone to remember:

• Step 1: If the injured worker has a 100% earnings loss and a WPI of 44 or less, add 18.1 to the WPI and round down.
• Step 2: If the injured worker has less than 100% earnings loss or a WPI of 45 or higher, go to Step 3.
• Step 3: For heaven’s sake, just make your life easier and use the calculators here at PDRater.com.

What do you think?  Leave a comment or drop me a line.

1. Sorry Jeff, Mark, Mark, and Ray!
2. Thank you “S”!  Unfortunately, he did not want to be named.
3. Man, I *wish* I could take credit for this observation.
4. Not multiplied by 18, but an addition of 18.
5. PIESSE = Post Injury Earnings of Similarly Situated Employees
6. PIEA = Post Injury Earnings of Applicant

Always room for guest articles at PDRater!

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

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.

PDRater workers' compensation calculators - so easy your cat can use them!

What’s that?  You haven’t memorized ALL of the FEC ranks to go with each of the 2005 Permanent Disability Rating Schedule body parts? [1]

Why didn’t you say so?   (Actually, someone did ask for an easy way to look up the FEC ranks back on April 1).

I’ve been working on an easy way to allow a user to look up and quickly insert the FEC rank for the affected body part.  I finally got around to building it a few days ago and launched it this morning.  Please give it a shot and let me know what you think.

Here’s all you need to do to perform your very own Ogilvie calculation:

1. Go to the permanent disability calculator page. (If you haven’t already signed up for free, this is a good time.)
2. Click “Ogilvie” Diminished Future Earning Capacity Calculator “
3. Type in the FEC rank OR click “FEC Rank (1-8)” and click on the injured body part.  It will look up the FEC rank and insert it for you.
4. Type in the “Whole Person Impairment”
5. Type in the “Post Injury Earnings of Applicant”
6. Type in the “Post Injury Earnings of Similarly Situated Employees” OR click the link to obtain some information from the EDD Labor Market Information Division (LMID) and US Department of Labor, Bureau of Labor Statistics (BLS).

If you can think of a way for me to make this calculator even easier, please let me know. [2]

1. You’ve only had four years, right?
2. Photo courtesy of Vicki’s Pics

Permanent disability calculators that will fit in any pocket!

I was at the San Jose WCAB on Friday.  Since recently discovering that I could run this website’s permanent disability rating calculators from my phone’s web browser, this was the first time I left my rating manual, money chart, and date wheel in the car.[1]

It was great.  That morning I used my phone to:

• Find the ADJ number associated with the legacy SJO number on my file
• Calculate an Ogilvie adjustment of a rating string
• Calculate the number days between two dates
• Perform old and new schedule ratings
• Perform a CVC (combined values chart) calculation[2]

The benefit for me is not so much that I don’t have to carry the rating manuals, dollar value charts, and date wheels.  Unlike these tools, my phone is not something I’m going to misplace or loan and never see again.

The best part is that if I want to refer back to the calculation I just performed, I can just e-mail it to myself!

1. Photo courtesy of .robbie
2. Oh, and I called my client at one point.  Ha!

This phone will not run PDRater calculators, but yours might!

I recently discovered that installing the Opera Mini web browser on my “smartphone” has allowed me to run this website’s workers’ compensation calculators from my phone.[1]

Since launching this website I’ve given a lot of thought to support for cell phones.  There just are not many phones that can run these calculators.[2] The glaring and notable exception is the iPhone.

Amusingly, one of this website’s users has asked for an “iPhone app” version of this site.  Seriously, you’ve got one of the few phones that can use this site and that’s not good enough for you?  (Thanks Chris!)

This is huge.  It means:

• I can blog from the Board[3]
• More importantly, no more bulky money charts or rating manuals at the Board!

1. Photo courtesy of storm gal
2. It would be more correct to say there are not many phones that support javascript and AJAX well enough to interact with this website in a meaningful fashion.
3. Probably a lot more interesting for me than it is for you…

Appeal (get it?)

Thanks to our friends at AppealsBoardReporter.com, we now have access to 22 amicus briefs filed in the Ogilvie and Almaraz/Guzman cases. [1] In late March 2009 the WCAB granted reconsideration of their recent Ogilvie and Almaraz/Guzman decisions – and invited the submission of amicus briefs.  You can read and download them here:

• 17 Almaraz/Guzman Amicus Briefs
• 5 Ogilvie Amicus Briefs

Who produced them?  Well, Ogilvie amicus briefs were filed by:

• Morrow & Morrow
• International Association of Rehabilitation Professionals
• The Travelers Companies Inc.
• Insurance Commissioner Steve Poizner
• California Workers’ Compensation Institute

The Almaraz/Guzman briefs were filed by:

• California Applicants’ Attorneys Association
• California Chamber of Commerce-CSAC Excess Insurance Authority
• County of Los Angeles
• California Self-Insured Employers Association
• California Society of Industrial Medicine and Surgery
• California Workers’ Compensation Institute
• Department of Industrial Relations Director John Duncan
• Employers Direct Insurance Company
• Phil Walker, Esq.
• Phil Walker, Judicial Notice Request
• Protected Insurance Program for Schools
• Insurance Commissioner Steve Poizner
• Safeway Inc.-The Boeing Co.-Schools Insurance Authority
• San Diego Schools Joint Powers Authority
• International Association of Rehabilitation Professionals
• Morrow & Morrow
• The Travelers Companies Inc.

After reviewing the above list, I have to wonder: Why doesn’t CAAA have an amicus brief for Ogilvie?  Does anyone know?

1. Photo courtesy of Black Glenn.  Terrible pun courtesy of me.

Need more time to think about Ogilvie, Almaraz/Guzman?

Sometimes even the WCAB needs more time to think.[1]

On March 26, 2009, the director of the Department of Industrial Relations, John C. Duncan, issued a letter to the entire Workers’ Compensation Appeals Board asking them to vacate their own decisions and solicit argument and amicus briefs.  Here’s a copy, courtesy of WCExec.com, the Letter from Director of DIR to WCAB re: Ogilvie and Almaraz/Guzman (3/26/2009).

On Monday April 6, 2009 the WCAB issued three Orders Granting Reconsideration and Order Allowing Amicus Briefs (en banc) in Ogilvie and Almaraz/Guzman.  For your review:

• Order Granting Reconsideration and Order Allowing Amicus Briefs on Wanda Ogilvie v. City and County of San Francisco, ADJ1177048, SFO 0487779, (en banc) (4/6/2009)
• Order Granting Reconsideration and Order Allowing Amicus Briefs on Mario Almaraz v. Environmental Recovery Services (a.k.a. ENVIROSERVE) and State Compensation Insurance Fund, ADJ1078163, BAK 0145426 (en banc) (4/6/2009) and Joyce Guzman v. Milpitas Unified School District and Keenan & Associates, ADJ3341185, SJO 0254688 (en banc) (4/6/2009)

What does the Order Granting Reconsideration of Ogilvie and Almaraz/Guzman mean for you?

1. Ogilvie and Almaraz/Guzman are still the law.  Despite Commissioner Aghazarian’s two concurring opinions, the WCAB did not issue a stay of either Ogilvie or Almaraz/Guzman.
2. The WCAB has granted SCIF’s petition for reconsideration in Almaraz, granting reconsideration on their own motion in Guzman, and the parties’ petitions for reconsideration in Ogilvie.  They have granted reconsideration on these cases to, “afford us a sufficient opporutnity to study the issues.”[2]
3. Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.

1. Photo courtesy of radiospike photography
2. Hence, the “The Thinker” reference above…