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 The calculations from the en banc decisions of Ogilvie I/II are no longer valid.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 []
Jul
18
2011
0

Workers’ Compensation Specialization Boot Camp

Boot Camp

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. Permanent Disability

    1. Cal Labor Code § 4660

    1. Description of disability

    1. 1997 Permanent Disability Rating Schedule

      1. Rebutting the 1997 Permanent Disability Rating Schedule

      1. LeBeouf

    1. 2005 Permanent Disability Rating Schedule

      1. Permanent Impairment

      1. Rebutting the 2005 Permanent Disability Rating Schedule

      1. Costa/Harding

      1. Almaraz/Guzman II

      1. Guzman “III”

      1. Ogilvie II

  1. Photo courtesy of jumpinjimmyjava []
Sep
24
2010
0

Annual Meeting of The State Bar of California – Monterey

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

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! []
Mar
13
2010
0

Calculating Ogilvie

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
    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

Jan
18
2010
0

It’s final: Ogilvie is not stayed

WCAB gives Ogilvie the green light

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]

Commissioner Miller letter dated 1/13/2010 to Defense attorney on Bowden v Sunray Termite.

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. []

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