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 [↩]

Oh, if only rehab was this easy…

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. [↩]

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. [↩]