PDRater – Ogilvie ratings and PD calculators

This afternoon I am presenting at the Workers’ Compensation Section Spring Conference 2010 with a presentation entitled, “Calculating Ogilvie.”  Due to cases relevant to Ogilvie coming out as recently as ten days ago, I’m making the resources mentioned here for everyone to download (along with a rough outline of the presentation).

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

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!!! [↩]

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 [↩]