Jul
29
2011
0

Reversed! Ogilvie v. City and County of San Francisco

It's been a wild ride

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 The calculations from the en banc decisions of Ogilvie I/II are no longer valid.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 []
Dec
14
2009
0

Do-It-Yourself Ogilvie DFEC Analysis

If you can use duct tape, you can perform an Ogilvie DFEC analysis in 5 minutes

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 []

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