• 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

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?  ;)

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.

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.

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!

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…