Jan
18
2010
0

It’s final: Ogilvie is not stayed

WCAB gives Ogilvie the green light

WCAB gives Ogilvie the green light

Apparently the defense attorney on Bowden v Sunray Termite wrote ex parte to the WCAB requesting the case be declared a significant panel decision. [1]

Commissioner Miller’s letter (download below) notes Bowden was a “purely fact driven case” and “is not to be a statement of legal importance to the community.”  Commissioner Miller further points out Significant Panel decisions are citable panel decisions but not binding legal precedent. [2]

Commissioner Miller letter dated 1/13/2010 to Defense attorney on Bowden v Sunray Termite.

What does this mean to you?

Ogilvie has not been stayed, so sharpen your #2 pencils and work on your math skills.

  1. Photo courtesy of adamwilson []
  2. Even if the defense attorney’s request had been granted Ogilvie, as an en banc decision, would still take precedence over Bowden. []
Jan
12
2010
0
Dec
28
2009
0

Has Ogilvie been stayed???

Just a red herring

Just a red herring

In a word, noOgilvie has not been stayed by the WCAB, Court of Appeals, or any other court at this time. [1]

A defense attorney is circulating a letter suggesting that he got the Board to agree on Reconsideration to stay the application of Ogilvie on a case until the Supreme Court decides on the issue.

First, let me preface by saying the Board might theoretically decide to not apply the DFEC rebuttal analysis under Ogilvie for any number of reasons:

  • Perhaps the defense vocational expert witness was particularly persuasive
  • Perhaps the injured worker was a terrible witness
  • Perhaps the Board noted a particularly disproportionate effect of Ogilvie
  • Perhaps there were a lot of “motivational” issues for the injured worker
  • Perhaps the injury was less than 3 years old

Secondly, even if the Board found a way to decline to apply the DFEC rebuttal analysis under Ogilvie in one circumstance, this does not stay or overrule Ogilvie.  We would need to see something from either the Court of Appeals or another[2] en banc Ogilvie decision from the WCAB.

Thirdly, while I have not seen the documentation to prove it, I have learned the Board declined to apply the DFEC rebuttal analysis under Ogilvie due to some technical issue not having much to do with the actual Ogilvie case.

So, to recap – Ogilvie has not been stayed.  If someone claims otherwise, ignore them until they produce the case.  And when you see it… send me a copy!

  1. Photo courtesy of jypsygen []
  2. Third!!! []
Dec
18
2009
1

Permanent Total Disability Benefits – deja vu all over again

Double dip done right

Double dip done right

Some commentators have suggested that the recent Duncan v. WCAB (X.S.) case creates a “double dip” for injured workers entitled to permanent total disability benefits. [1]  While I would take issue with much of that commentary, I would agree that permanent total disability benefits are affected by changes in the state average weekly wage twice under Duncan v. WCAB (X.S.).  Of the four benefits in California workers’ compensation system that are affected by changes in the SAWW, only permanent total disability benefits are affected twice.

It took the patient guidance of a very smart friend to help me to understand how this works:

  • When determining the proper starting rate for a permanent total disability case, you must first turn to Cal. Labor Code § 4453(a)(10).  This statute dictates that the limits (as in the statutory minimum and statutory maximum limits) are to be increased by the increase in the state average weekly wage (or SAWW).
  • However, according to Cal. Labor Code § 4659(c) as interpreted by Duncan v. WCAB (X.S.), the benefit rates themselves are then increased by the increase in the state average weekly wage (or SAWW).

Is it “double dipping” to have both the upper/lower limits and benefit rates increased by the SAWW?

Perhaps, but that’s what the two statutes say and what the Court of Appeals has decided.

  1. Photo courtey of alex012 []
Dec
17
2009
0

What benefits are affected by the SAWW?

Getting a handle on the SAWW

Getting a handle on the SAWW

Four benefits in California workers’ compensation are affected by changes in the state average weekly wage (or SAWW).[1]

  1. Temporary total disability benefits
    • The maximum and minimum benefit rates can be affected by the SAWW.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
  2. Life pension benefits
    • The statutory life pension rates are now increased by the SAWW as directed by the recent Duncan v. WCAB (X.S.) case.
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  3. Permanent total disability benefits
    • First, the minimum and maximum limits for permanent total disability benefits are increased, then the benefit rates themselves are increased.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  4. Death benefits
    • “A death benefit in all cases shall be paid in installments in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders.” Cal. Labor Code § 4702(b).

Did I just describe two increases to the permanent total disability benefit rate?  Huh, so I did.

Tune in tomorrow for more on Duncan v. WCAB, COLA’s, and SAWW increases!

  1. Photo courtesy of Sean Venn []

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