Boot Camp

The Workers’ Compensation Specialization Boot Camp on July 16 and 17 in Los Angeles was a packed house. [1]  If you missed out, there’s another chance to attend on July 30 and 31 in Concord.

If you did attend the seminar in Los Angeles, I promised you a copy of all of the cases cited during the presentation on Permanent Disability.  Here’s the basic outline along with a download link for every case I cited:

1. Permanent Disability
   1. Cal. Labor Code. Section 4660
   2. LeBoeuf v. Workers’ Comp. Appeals Bd.
   3. Costa v. Hardy
   4. Almaraz/Guzman “II”
   5. Guzman “III”
   6. Ogilvie “II”
   7. (Updated 7/29/2011!) Ogilvie v. City and County of San Francisco, Court of Appeal, A126344, A126427
      1. Read a summary of Ogilvie III here!
   8. Argonaut Ins. v. Ind. Acc. Comm (Montana)
2. Psychiatric Injuries
   1. Cal. Labor Code Section 3208.3
   2. Dept. of Corrections v. Workers’ Comp. Appeals Bd. (Garcia)
3. Apportionment
   1. Cal. Labor Code Section 4662
   2. Cal. Labor Code Section 4663
   3. Cal. Labor Code Section 4664
   4. Cal. Labor Code Section 3213 – 3213.2
   5. Escobedo v. Marshall’s
   6. Benson v. Workers’ Comp. Appeals Bd.
   7. Brodie / Welcher
4. Rating
   1. Blackledge v. Bank of America
   2. Policy & Procedures Manual of the WCAB
5. (Updated 7/18/2011!) Flash Card Take Away
   1. Please register for a free account with PDRater.com to download this file.
   2. Seriously – free as in free.  There’s no charge, no credit card anything.

1. Photo courtesy of jumpinjimmyjava

Now THAT's an old schedule case!

I heard the best workers’ compensation joke yesterday. [1]  Here goes:

• “Is this an old or new schedule case?”
• “Of course it’s old schedule.  Just look how old it is!”

1. Photo courtesy of dklimke

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

Also not a valid permanent disability rating schedule for 2009

I’ve been getting a lot of questions about the Draft 2009 Permanent Disability Rating Schedule.  There is no 2009 Permanent Disability Rating Schedule. [1]

Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.

Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule.  The biggest change is in the application of the FEC rank adjustment.  Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%.  Additionally, the proposal suggested juggling the various ranks among the body regions.  If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.

Here’s the take-away:

• The 2009 Draft Permanent Disability Rating Schedule was not approved.
• The only official schedule for injuries on or after 1/1/2005 is the current 2005 Permanent Disability Rating Schedule.
• The DEU’s own webpage, updated on 10/2009 as of the date of this posting, doesn’t even offer a link to the 2009 draft schedule.

1. Photo courtesy of wenzday01

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

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?  ;)

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.

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.

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

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…

Getting an upgrade!

Late last week a user asked for a new feature.[1]  He wanted to be able to perform the Ogilvie DFEC rebuttal calculation and have the results e-mailed to him.[2] Well, I built it![3]

To e-mail yourself a calculation, perform the calculation as normal.  When the website returns your calculation, it will say “E-mail Me!“  Just click that button and it will send an e-mail to the address you used to register for this website.

However, here’s the cool part:  I’ve installed this new e-mail system into every calculator! [4] No more having to copy and paste!  Just click one button and your calculation will show up in your inbox![5]

Although I intend this to be a paid-subscription-only feature, I am going to leave it open for all users while I get some feedback.  So, what do you think?  Please leave a comment or shoot me an e-mail!

1. Thanks Dennis!
2. Photo courtesy of Vernhart
3. Why, what did you do with your Saturday morning?
4. I haven’t installed it in some of the EAMS lookup functions
5. If you filled in the boxes for Applicant, WCAB #, and File #, it will include this information in your e-mail as well.  This is only for your convenience and not a requirement.

Could THIS be the elusive Ogilvie formula?

So, here’s the deal:  I want to build the absolute most comprehensive suite of calculators and tools for workers’ compensation professionals. [1]  I also want your help to making them better.

In the last few days several people have sent me questions about the Ogilvie DFEC workers’ compensation calculator:[2]

1. Is it possible to get an Ogilvie DFEC adjusted whole person impairment above 100%?
   • I believe it might be theoretically possible to achieve an adjusted whole person impairment above 100% using the Ogilvie DFEC formula.  I could easily include a small variation on the calculation that would prevent it from exceeding 100, but I have not done so because I wanted to replicate the the formulas set forth in Ogilvie as exactly as possible.
2. Why can’t I use post-injury earnings of $0.00?  What if they have no earnings at all?
   • That’s an extremely valid point.  If you try to use a post-injury earnings of “zero”, it will cause division by “zero” which is not a mathematically legal operation.  Try post-injury earnings of $1.00 or $0.01.  Doing so will give you an answer VERY close to what you need. [3]
3. When do you round each calculation when performing the Ogilvie DFEC calculation?
   • The WCAB en banc in Ogilvie rounds to three decimal places at one step and to four decimal places at a second step.  The only way we know what they actually did is by extrapolating from the examples in the decision – they never actually state “round to four significant digits here, round to three significant digits there.”  I have rounded exactly as they did in their examples.
   • At the end of the day, there are two ways to perform the Ogilvie DFEC calculation:  the exact way the WCAB did it (sometimes four, sometimes three decimal places) and the way they probably intended to do it (four decimal places until the end).  I made the judgment call to use the formula as they performed it, warts and all.
   • Why did I choose to round as the WCAB did?  I think it is more defensible to calculate exactly as the Board did, rather than as I think the Board should have calculated.
4. How do you put the Ogilvie DFEC adjusted whole person impairment into the rating calculator?
   • At this point, you can’t use a different FEC Rank or an Ogilvie DFEC adjustment factor in the 2005 PDRS rating calculator on this site.  In order to accomodate this, I would need to either rewrite the entire calculator or write a new calculator.  One other possibility is that I could modify the Ogilvie DFEC calculation to provide one extra line of information – where it “runs the FEC numbers backwards.”
   • Let’s take this example:  Suppose the body part FEC rank is 1 and whole person impairment is 10.  The normal FEC adjusted whole person impairment would be 11.  Let’s suppose after applying the Ogilvie DFEC formula it turns out you should have an FEC rank of 8 instead.  This would give you an Ogilvie DFEC adjusted whole person impariment of 14%.  I could write a modification of the current Ogilvie DFEC calculator to put 14% into the FEC Rank chart and look up what whole person impairment you would need with an FEC rank of 1 to arrive at 14%.  Would you find this a helpful interim fix?  Please let me know by sending me an e-mail.
5. Jay, why in the world did the Ogilvie DFEC calculator reference “standard disability”?  Shouldn’t it say “whole person impairment”?
   1. You’re totally correct.  I’ve fixed this.  Mea culpa.

Here’s my request for your help.  In order to make an Ogilvie calculation valid, you need to put in valid post-injury earnings of similarly situated employees.  The WCAB in Ogilvie suggests several possible sources:[4]

• EDD Labor Market Information Division (LMID):
  • www.labormarketinfo.edd.ca.gov/
  • www.labormarketinfo.edd.ca.gov/?pageid=152
• US Dept of Labor, Bureau of Labor Statistics (BLS):
  • www.bls.gov/bls/blswage.htm
  • www.bls.gov/data/

What do you use for post-injury earnings of similarly situated employees?  If I had a better idea where people were looking it is possible that I might be able to automate the inclusion of this informaiton as well.  Please drop me a line and let me know.   If there is a general consensus, I’ll look into the possiblity of having this informaiton automatically imported from an external website.

1. Why?  Some people have wacky hobbies.  Maybe you build hockey arenas out of toothpicks.  I build workers’ compensation calculators and give them away for free.  If it will put you at ease, I hope to make money from advertising in the future.
2. Photo courtesy of nerissa’s ring
3. I know it has a less than friendly error message about this. I’ll see what I can do about fixing that.
4. I’ve copied the links directly from Ray Frost‘s Ogilvie spreadsheet/calculator.  Ray has been kind enough to allow me the use of his extensive work restrictions lists.  So, thanks Ray!

Workers' Compensation Calculator

I had an interesting e-mail exchange with a friend (and fellow workers’ compensation professional) the other day.[1]

We were discussing the impacts of Ogilvie on 2005 schedule ratings.  He had asked me whether I intended to update the 2005 permanent disability rating calculator to include FEC Ranks after the scheduled 8.  I believe he had suggested FEC Ranks 9 through 20.

I have no intention of manufacturing FEC Ranks 9 through 20 for the following reasons:

• Maintaining Standards. The entire point of a rating schedule is to allow a standardized method for calculating disability and expressing those disability calculations.   If I invented my own FEC Rank system beyond the scheduled 1-8 Ranks, I would essentially be creating my own rating calculation system.  I’ve gone to considerable lengths to ensure that the rating strings produced by these permanent disability calculators are as standardized, recognizeable, and universal as possible.
• FEC Ranks are Irrelevant. The FEC Rank system is a simplified method of applying DFEC adjustment factors.  When you use the FEC Rank of a particular body part to adjust the standard using the charts on pages 2-6 and 2-7 of the 2005 PDRS (permanent disability rating schedule), what you’re really doing is essentially multiplying your standard disability against the FEC adjustment factor associated with the particular FEC Rank for the body part in question.  An FEC Rank is only useful for telling you the appropriate FEC adjustment factor to apply to the standard disability.  Thus, FEC Ranks are irrelevant and FEC adjustment factors are all important.
• Arbitrary FEC Ranks. FEC Rank 1 has an FEC adjustment factor of “1.100″.  However, using the Ogilvie DFEC rebuttal formula, it is possible to end up with very low FEC adjustment factors.  In extreme circumstances it would be possible to have a negative FEC adjustment factor.  The only way to resolve this would be to have several possible negative FEC Ranks.  Besides being somewhat silly, worrying about additional FEC Ranks[2] misses the point.  If you’re using the Ogilvie DFEC rebuttal formula properly, the result will be a new FEC adjustment factor.  If you already have the FEC adjustment factor, you have no need for the FEC Rank!

When I had discussed the impact of Ogilvie earlier, I had pointed out that in some cases the resulting formula will dictate that you use a different FEC Rank than the one indicated by the affected body part.  In other cases you will need to use an entirely new FEC adjustment factor.  In order to keep the 2005 disability calculator current I will eventually have to create a way for the user to override a body part’s standard FEC Rank and specify a new FEC Rank or their own FEC adjustment factor.

I’m not in any particular rush to develop this feature since Ogilvie seems to require three years of post-injury earnings.  I doubt we’re going to see litigation begin in earnest over Ogilvie issues for another 18 to 24 months.

1. Photo courtesy of Street Fly JZ
2. Both higher and lower than the normal 8