Don't calculate COLA's the hard way!

I’m happy to announce the single most-requested service for this website – a COLA SAWW commutation reports. [1] This calculator provides professional quality PDF’s using the same familiar format as the Disability Evaluation Unit.  Now you don’t have to wait for the DEU and you don’t have to tip your hand to the opposing side about what you think the case might be worth.

Download a sample report right now to see the kind of detailed commutation reports that get cases resolved.  These COLA commutation reports are delivered instantly to your e-mail.  You can customize the report with everything you want – from a State Average Weekly Wage increase percentage of your choosing, to attorney fee percentage, and whether a Labor Code Section 4658(d) increase is applicable.

And, best of all, when you purchase one of these reports for $197.00 ($147.00 for PDRater sponsored users!) it comes with unlimited FREE additional reports on the same case.  (Don’t worry – it doesn’t cost anything to play with the calculator). Whether you need to change the permanent disability rate, SAWW increase percentage, or just want a fresh report with a new commutation date – every single report on the same case will be delivered to you instantly and for free.

Here’s an example of how quickly you can a COLA SAWW commutation report on your case right now:

1. Photo courtesy of Alan Cleaver via Compfight

Where did this SAWW come from anyhow?

Even with the recent Baker v. WCAB decision settling when the increase in state average weekly wage (SAWW) is applied, litigation continues over the precise future SAWW percentage to use in a commutation of life pension benefits. The DEU is currently using an assumed annual SAWW increase of 4.6% “based on a 50 year average.” [1]

Before we consider how the DEU calculates future SAWW increases, it is necessary to look back to past SAWW changes.  In the last 50 years there have been only two instances where the SAWW has decreased from the prior year.  Since Labor Code Sections 4659(c) and 4453(a)(10) only apply increases in the SAWW to life pensions and permanent total disability benefits, there is no effect on the benefit rates for those two years.

When the DEU indicates a historical 50-year average of SAWW increases, they mean exactly that.  Thus, instead of averaging the decreases in the SAWW with the increases, the DEU averages only the increases of the historical SAWW data.  (I’ll save you the trouble of looking it up – 2004 and 2011 are the only instances in the last 50 years of any reduction in the state average weekly wage).  An average of just the SAWW increases over the last 50 years does come to 4.6%.

If you’re interested in verifying this information for yourself, I’ve prepared a list of the data used by the DEU in computing the 50-year average of SAWW increases.

1. Andrea Marutti via Compfight

Work never sleeps

It’s not easy being busy and important.  I get that. [1]

And that’s why I’m just trying to make your life just a little bit easier with our new permanent and stationary report rating service.

Need a rating fast?  Need “old schedule” and “new schedule” ratings?

No problem.  Just fill out the handy referral form and fax or e-mail us your permanent and stationary reports and one of our Certified Impairment Rating Specialist will quickly e-mail you the rating you need to move your case forward. [2][3]

1. Or, rather, I would get it if I were important too.
2. A PDRater certified rating is a rating prepared by a Certified Impairment Rating Specialist using PDRater calculators, the most trusted and impartial workers compensation calculators in California.
3. Alex Lin via Compfight

This post has been rated "R" for some rating and mild humor

We’ve all seen ratings from various sources – the DEU, opposing counsel, clients, and professional raters. [1]  My question to all of you dear readers is – what do you like to see in a professional permanent disability rating?

1. Photo Credit: Shira Golding via Compfight

A new kind of COLA

I’m getting ready to launch a new workers’ compensation calculator and I could use your help. [1] I still need a few volunteers to help me test a permanent disability, life pension, and total permanent disability COLA commutation calculator.  Right now I need a few applicant attorneys, defense attorneys, and claims examiners.

Here’s what you need:

• Any free or paid PDRater account
• A familiarity with DEU COLA commutations
• A familiarity with recent Baker decision
• A willingness to answer a few questions

If this sounds like something you would be interested in helping with, please send me an e-mail!

1. Photo Credit: Davide Reppucci via Compfight

Easily replaceable tablets

A few weeks ago I was at the Oakland WCAB when a Judge asked me if I could help find the owner of a lost tablet computer. [1]  I was handed the tablet… but was unable to turn it on.  It turned out that the computer had been turned on and the battery drained down to nothing.  There was no charge cable, no standard USB charging port, no way to power the device, and nothing about it that apparently indicated the identity of its owner.

Here’s what I tried:

• I looked all over the tablet and inside the case.  Any mobile PC you own should have something identifying it.
• I looked all over the tablet for a way to possibly charge the device.  Even had I been able to do this, I probably wouldn’t be able to get past the unlock/password screen.
• The vast majority of 3G/4G mobile broadband computers will have a little tiny “SIM” card in it.  It is a tiny chip about a quarter of the size of a standard SD card.  In some devices you have to open the battery compartment to get to it.  If you can remove the chip you can find out who the broadband carrier is.  In this case the chip had the Verizon name and logo as well as a 10 digit number printed right on it.  It’s that number that lets the tablet PC’s user connect their computer to their Verizon account.  I then called Verizon, spoke to one of their representatives, told them the 10 digit code, gave them my cell number, and about fifteen minutes later the owner of the PC (a friend of mine as it turned out!) called me up!

So, the moral of the story is to make sure you put something on your mobile PC to indicate your ownership so that if someone finds it, they can let you.

1. Photo courtesy of Helzer

Let's see... "TAX+" or "TAX-"

Here’s a pro-tip for you Applicant attorneys.  Some insurance companies and TPA’s are actually unable to issue payments to entities unless they have their Tax ID number.  Making it easy for defendants to issue payment means you’ll get paid sooner.[1]

Here are the top three ways to get paid sooner:

• Put your Tax ID number on the settlement documents
• Put your Tax ID number on your website
• Make sure your receptionist has your Tax ID number ready to give out
• Put your Tax ID number in your automated voice mail message

1. Photo courtesy of Phillip

Talk to your doctor about how you can save 15% or more on your reptile dysfunction medication

A friend of mine is an Applicant’s attorney who uses dictation software with his work computer. [1] As you may know, dictation and voice recognition software is pretty good – but it is not always successful.  My friend, I’ll call him “Tom,”[2] was sending an e-mail demand for medication to a defense attorney using his dictation software.  The software got the phrase wrong, but given that the result was extremely entertaining, he sent it anyway.

What was his demand, you may ask?

Medication for his client’s “reptile dysfunction.” [3]

1. Photo courtesy of dmuphotography
2. After all, that is his name…
3. Other possible names for this post:
   • I got 99 problems, and a reptile ain’t one
   • Reptile problems
   • What do Bob Dole and the Geiko gekko have in common?

Look up! Dates!

A few weeks ago I e-mailed an Applicant attorney friend of mine[1] and got back a one word response.  I jokingly chided him for being so chatty.  His response was thus:

No new blog = minimal response

Well, for Z and everyone else out there, here’s a new blog post![2]  Over the weekend I updated several aspects of the website. [3]  Here’s a short summary:

1. Updated MPN / Medical Provider Lists.  I’ve added a lot more MPN names, links, and passwords.  If you have some new ones, please send them over.  I’ve also improved the link structure to help prevent broken links.
2. Updated workers’ compensation calculators.  I’ve added a few small features that should make the calculators work a little better.
3. Improved site speed.  I’ve added a little extra website-internet-magic-mojo that should improve the entire site’s performance.
4. Something new!  I’m working on a brand new calculator.  If you like playing with calculators, kicking-tires, and dishing out criticism, drop me a line and ask to be a beta tester.
5. Finally, if you see any weirdness over the next few days, please drop me a line and let me know so I can take care of it!

But, enough about me!  How are you?

1. I’ll call him “Z.”
2. There are two kinds of blog posts I really hate to read.  Blog posts that apologize for infrequent posting and blog posts that talk about the frequency of blog posts.
3. Photo courtesy of Agent Smith

It's been a wild ride

Just over a month after oral argument the Court of Appeal has issued their ruling, reversing the en banc decisions of the Workers’ Compensation Appeals Board, annulled the award of permanent disability to Ms. Ogilvie, and remanding the case for further proceedings. [1]

So, what does this new Ogilvie decision mean for us?

1. The calculations from the en banc decisions of Ogilvie I/II are no longer valid.
2. An injured worker can still rebut a scheduled rating in accordance with Costa v. Hardy and L.C. 4660 .
3. An injured worker may rebut a scheduled rating in one of three ways:
   1. Demonstrating “a factual error in the application of a formula or the preparation of the schedule.”  (Ogilvie III, p10-11).  Given the examples provided, probably references proving a defect in the RAND Study 2003 itself.
   2. Demonstrating impairments via LeBoeuf v. W.C.A.B. -style analysis that “the employee will have a greater loss of future earnings than reflected in a rating because, due to the industrial injury, the employee is not amenable to rehabilitation.”  (Ogilvie III, p12).  However, the increased disability must not be “due to nonindustrial factors such as general economic conditions, illiteracy, proficiency to speak English, or an employee’s lack of education.”
   3. Demonstrating “the claimant’s disability has been aggravated by complications not considered within the sampling used to compute the adjustment factor.”  (Ogilvie III, p13).  This appears to be a two-step process of having to prove a complex injury and then proving that the sample for the adjustment factor didn’t account for such injuries or complications.

Download Ogilvie v. City and County of San Francisco, Court of Appeal, A126344, A126427 aka Ogilvie III right now!

1. Photo courtesy of mpieracci

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

Math: The best kind of witness

Yesterday the U.S. Supreme Court heard oral argument on a 10 year old sexual discrimination law suit brought against Wal-Mart.[1]  I was listening to a summary of the oral argument yesterday when I heard this:

Scalia added that if statistical models can replace witnesses and evidence, “we must have a pretty bad judicial system.”

I was driving at the time just about lost it.  Replacing witnesses and evidence with statistical models?  Oh, Judge Scalia, you’ve clearly never practiced in Workers’ Compensation…

1. Photo courtesy of colodio

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

What has two thumbs and loves to hear itself talk? THIS GUY!!!

There was a great turn out this morning to the “How to Obtain an Accurate PD Rating with the AMA Guides” put on by the Workers’ Compensation Section of the State Bar.  We covered a lot of ground in just two hours, from the DEU perspective presented by Annalisa Faina and Barry Knight entitled “Anatomy of Rating”, to Mark Gearheart’s “Substantial Medical Evidence to Support a Permanent Disability Rating,” and my own presentation on “Litigating Ogilvie.”  There was a lively discussion on the state of Almaraz/Guzman, Blackledge, and Ogilvie. [1][2]

Thanks to everyone who e-mailed me asking for the cases cited during our presentations.  I’ll be uploading them shortly.

Tonight is the “2010 Steve Jimenez Special Recognition Awards” honoring:

• Lifetime Achievement: The Honorable Pamela Foust (Ret.)
• Judge of the Year: The Honorable Jorja FrankHon. Jorja Frank
• Applicant Attorney of the Year: Marc Marcus
• Defense Attorney of the Year: Michael Marks

If you’re attending tonight, please stop me and say hello!  (I’ve got a name tag and everything)

1. Lively as in “barely civil”
2. I’m kidding!

You'd have to know the theme song to really get it...

You’ll understand the title in just a moment…

For the last few months my laptop has been in bad shape.  Such bad shape I’ve been using a backup laptop. [1]  Something on my laptop’s motherboard went bad and killed the battery. [2][3]  I could still use it – but I had to keep it plugged in all the time.  If I needed to move it, I had to shut it down all the way, move it, then boot it up – since it had no battery life at all.

Well, Dell’s kick ass incredible customer service took care of me – once again.  I can’t thank these guys enough for going above and beyond.  I’ve said it before and I’ll say it again, my next laptop is going to be a Dell. Thanks to Lionel my laptop is sporting a totally brand-spanking new motherboard and power cord.  I’ve also just slapped in a totally new battery as well.

Anyhow, I’m beyond happy. [4]

1. Trust me, the back up laptop is nothing to brag about.
2. You see, the motherboard – it went bad.  It was one bad mother…  Oh, forget it.
3. The photo does not belong to me and is probably the property of MGM.
4. Yes, yes, I’m a nerd – whatever.

Three doctors is probably just plain excessive. And more than a little creepy.

My prior record for doctor depositions was three in one month.  This was not at all intentional.  It was probably a number of factors.  I tend to take more doctor depositions than most.[1] Almaraz/Guzman issues are usually best addressed during a deposition.  And, lastly it just happened to be an extra busy month.

This week I attended three doctor depositions (two set by myself, one set by a co-defendant).  I’d say that pretty well trumps three in a month.  :)

A special shout-out goes to Doctors Z, J, and C.  Thanks for putting up with me guys.  Also, special thanks to Mr. W, my co-Defendant without whom this wouldn’t have been possible.

1. Photo courtesy of Little Miss no Name.  Photo editing – all me!

The end for Milpitas USD?

Update: Download Milpitas United School District v. WCAB and Guzman, 6th Appellate District Court H034853, ADJ3341185, SJO0254688!

Looks like Milpitas Unified School District v. WCAB and Guzman is here to stay. [1] The 6th Appellate Court has just affirmed the WCAB’s decision in full.

Where does this leave us?  Well, under “Almaraz/Guzman II” we need to get a “strict AMA” and either side can obtain an “Almaraz/Guzman II” opinion from the doctors based upon rebuttal evidence, with the Judge being the final arbiter.

What else does this mean?  I’m probably going to break my personal record for the most doctor depositions in a single month.

Click here for more in depth coverage of Guzman!

1. Photo courtesy of funkandjazz

Back in Sac!

I’m at the Sacramento WCAB this morning, so why not stop me and say hello?

Favorite deposition question: Doctor who?

For those of you keeping score at home, I’ve posted my personal records for the most walk throughs at different Boards in one day (3), most bridges crossed in one day (3), most bridge tolls paid in one day ($10), most bridges crossed without paying tolls legally (2), and now… depositions of doctors.[1]

I probably tend to take more doctor depositions than most.  I’ve normally got about one or two on calendar each month.  However, this month has been a personal record with three depositions of doctors.[2]

I seriously doubt any other workers’ comp attorneys keep track of this sort of thing.

1. Photo courtesy of BBC and TVScoop
2. Does this count as a professional record?

There now, don't you feel better?

Psychologists at the University of Minnesota have discovered that thinking about money, such as counting out bills, actually reduces peoples’ perception of pain. [1]  They also discovered the opposite holds true – being reminded of money you do not have increases the perception of pain.  But, here’s the really wild part – even “[m]erely touching cash or even staring at a money-filled screensaver could blunt the impact of hard or painful events.” [2]

Modified duty as a cashier just got a lot more interesting.

1. Photo courtesy of sam b-r
2. Thanks slashdot!