Ogilvie Calculations Made Dead Simple

Ogilvie for Dummies

Ogilvie for Dummies


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. 23 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 Loss56
    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 []

Guest Article from Vocational Expert Emily Tincher

Always room for guest articles at PDRater!

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 []

Guest Article: Vocational Expert Response to Ogilvie/Almaraz/Guzman

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.

To contact Emily Tincher, call 415 389 8953 or email her at Emily.tincher@cascadedisability.com.

Emily Tincher is a vocational expert, in practice over 25 years throughout California, as a specialist in workers compensation. She has a Masters in Vocational Rehabilitation Counseling from the CRC certified program at University of Southern California, and was admitted to the American Board of Vocational Experts as a Fellow.

Pocket Calculators

Permanent disability calculators that will fit in your pocket!

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) calculation2

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! []

Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

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

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:

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… []

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