Nov
12
2009
0

Ogilvie: Building the Case Part I

Building the case for a DFEC rebuttal

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?  ;) []
Sep
16
2009
0

The Role of Rehab Experts after Ogilvie II

Oh, if only rehab was this easy...
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. []
Apr
06
2009
1

Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

Need more time to think about Ogilvie, Almaraz, and Guzman?

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:

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… []
      Apr
      01
      2009
      1

      Suggestions for the Ogilvie Calculator

      Thank you for the feedback!

      Thank you for the feedback!

      I was recently sent feedback about the Ogilvie DFEC rebuttal calculator on this website. [1]  Here’s how I’ve incorporated that feedback:

      1. Inputs. The calculator results repeats the inputs with the results.  This ensures that the answer provided gives you enough context when showing the calculation to the other side or when you go back to review your file.
      2. Email. You can now e-mail your calculations to yourself.
      3. Links. I’ve added a link to the various Employment Development Department and U.S. Dept of Labor, Bureau of Labor Statistics inside the calculator itself.  It doesn’t automatically obtain the information, but hopefully you will find this helpful.

      There are two other issues I’m thinking about:

      1. An easy way to pull up the FEC rank of a particular body part.  Its kind of a pain to look up the body part, find the FEC rank, and then enter that into the calculator.  I’m thinking ways to simplify this process.  This shouldn’t be too bad to write.
      2. Rating using the Ogilvie DFEC adjusted whole person impairment.  This one will prove to be a difficult one to write in an intuitive fashion.

      How would you change these calculators?  What else would you like to see?  What do you hate about them?  Shoot me an e-mail or leave a comment!

      1. Photo courtesy of biketrouble []
      Mar
      28
      2009
      2

      New Ogilvie DFEC Rebuttal Calculator feature!

      Getting an upgrade!

      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. []

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