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]

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.

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

Just a red herring

In a word, no.  Ogilvie 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!!!

Double dippin' 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 courteys of _Bonnie_

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

Putting some teeth in the SAWW

We’ve all seen charts with the State Average Weekly Wage (“SAWW”) increases printed on them.[1] But, how useful are these when you’re dealing with an opposing counsel who won’t accept your chart or calculations based on that chart?

It sure would be nice to have all the SAWW information from the Division of Workers’ Compensation all in once place.  Well, it just so happens I’ve already done this for you.

Here is a copy of every DWC Newsline from 2003 through 2009 with information on every SAWW increase from 2004 through 2010, all ready to go in one handy-dandy PDF.

Share and enjoy!

More on Duncan v. WCAB, COLA’s, and SAWW increases tomorrow!

(Don’t forget to download a copy of Duncan v. WCAB here!)

1. Photo courtesy of Aeioux

Mini version of Duncan v. WCAB

In the spirit of my recent post summing up Ogilvie II and Almaraz/Guzman II in just three sentences each, I bring you a summary of the recent Duncan v. WCAB decision in just one sentence:[1]

The COLAs found in section 4659, subdivision (c) should be applied to life pensions or total permanent disability compensation as from January 1, 2004.[2]

Yes, that’s really it.  The Duncan decision consists mostly of background and discussion.  The actual decision is basically that one line above.

Come back tomorrow for more information about SAWW increases, COLA calculations, and more!

(Don’t forget to download a copy of Duncan v. WCAB here!)

1. Photo courtesy of MarkAllanson
2. Duncan v. WCAB, page 18.

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

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.

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.

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.

The Board is back!

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. [1]  Download the Ogilvie/Almaraz/Guzman decisions all in one place:

• Ogilvie v. WCAB I (en banc) 2/3/2009
• Ogilvie v. WCAB II (en banc) 9/3/2009

• Almaraz/Guzman I (en banc) 2/3/2009
• Almaraz/Guzman II (en banc) 9/3/2009

Each of these four is about 50 pages.  Read them carefully, there will be a test later.

1. Photo courtesy of arturodonate

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.

The WCAB: Throwing babies out with the bathwater since 1965

For context, its best to see the prior post about the WCAB’s Weiner v. Ralph’s (en banc) decision.  There’s even a link to the Weiner v. Ralphs (en banc) decision for download – just so you can play along at home.

The question in the title of the post is really a question about the WCAB’s rationale – not their end legal justification behind Weiner.  I believe the Weiner case hints that the WCAB is going to go the other way and uphold their rulings in Almaraz/Guzman and Ogilvie.

However, I think the WCAB’s rationale for ending vocational rehabilitation was because of the potential for enormous retroactive vocational rehabilitation maintenance allowance awards at the temporary total disability rate outside the cap (VRTD).[1][2]

1. Photo courtesy of Stephane Raymond
2. You see, I’m suggesting that the bathwater is VRTD and the baby itself is vocational rehabilitation.  Kinda kills the metaphor, eh?

Weiner v. Ralphs spells the end of rehab

The Workers’ Compensation Appeals Board recently solicited amicus briefs regarding the Weiner v. Ralphs case.  After review of the amicus briefs on the topic of the repeal of Labor Code Section 139.5 and vocational rehabilitation, the WCAB has just issued their en banc opinion.[1]

Download a copy of Weiner v. Ralphs (en banc) right here:

• Lawrence Weiner v. Ralph’s Company, Permissibly Self-Insured and Sedgwick Claims Management Services, Inc. (Adjusting Agent) ADJ 347040, MON 0305426 (en banc) (6/11/2009)

Obviously, you’ll need to read and interpret Weiner v. Ralph’s for yourself.  Here’s the Board’s own summary:

1. The repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009
2. A saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009
3. The vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009
4. Effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and
5. Subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

What does Weiner v. Ralph’s mean to you?

1. Vocational rehabilitation is gone unless there is a “vested” right by way order that became final prior to 1/1/2009.
2. If you already have a final order for vocational rehabilitation, the WCAB can still hear a dispute.

1. Photo courtesy of larryfishkorn

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.

The WCAB is soliciting input on vocational rehabilitation

The WCAB has just issued an “Order Allowing Amicus Briefs” (en banc) in the Weiner v. Ralph’s Company case.[1] The Weiner case is about the effect of the legislature’s repeal of Labor Code Section 139.5 as of January 1, 2009.  The repeal of this statute may have the effect of terminating all rights to vocational rehabilitation.

For the curious, you can download a copy of the Order Allowing Amicus Briefs (en banc) here:

• Order Allowing Amicus Briefs Lawrence Weiner v. Ralph’s Company, Permissibly Self-Insured and Sedgwick Claims Management Services, Inc. (Adjusting Agent) ADJ 347040, MON 0305426 (en banc) (4/16/2009)

The Board is allowing until May 11, 2009 for any interested party to file their own amicus brief on these Weiner vocational rehabiltiation issues.

1. Photo courtesy of Mathoov

Indy 500

Wow!  500 registered users!

Last month I mentioned that this website had a record number of new visitors.  I honestly thought that was an anomalous one day spike in traffic.  Instead we’ve had a sustained increase in new visitors and people signing up to use the workers’ compensation calculators for free.

Since February 13, 2009[1] I’ve enjoyed posting about:

• New Important Workers’ Compensation Cases
  • XYZZXSJO2 v. SIF
  • Benson v. WCAB affirmed
  • Ogilvie v. WCAB (en banc)
  • Almaraz/Guzman v. WCAB (en banc)
• Two New Calculators
  • Ogilvie DFEC Rebuttal Calculator
  • XYZZXSJO2 Future Life Pension Rate with COLA/SAWW Increases[2]
• Online Glasses – Reviewed!
  • Goggles4U.com Review Part I, Goggles4U.com Review Part II, and Goggles4U coupon: “glassyeyes“
  • GlobalEyeglasses.com Review and GlobalEyeglasses.com coupon: “glassyeyes“
  • How to Order Glasses Online
  • Pupillary Distance Matters
• PDRater.com Milestones:
  • 400 registered users!
  • 300 registered users!
  • 200 registered users!
  • 100 registered users!
  • PDRater.com is one year old!
  • Relaunch of PDRater.com!

Ever since I relaunched this website I’ve had this idea in the back of my mind that getting to 500 users would be a big deal.  There are literally hundreds of workers’ compensation professionals who rely on this website and its calculators to make their lives a little easier.  This certainly feels like a big deal to me.

1. When the 400th user registered.
2. I am keeping this calculator in beta testing until I get a little more feedback.  If you want to try it out, just drop me a line!