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The Board is back!

Need a FREE sample Ogilvie analysis brief complete with citations?

The Workers’ Compensation Appeals Board is back with their en banc decisions on Ogilvie and Almaraz/Guzman after reconsideration. [1]  Download the Ogilvie/Almaraz/Guzman decisions all in one place:

• Ogilvie v. WCAB I (en banc) 2/3/2009
• Ogilvie v. WCAB II (en banc) 9/3/2009

• Almaraz/Guzman I (en banc) 2/3/2009
• Almaraz/Guzman II (en banc) 9/3/2009

Each of these four is about 50 pages.  Read them carefully, there will be a test later.

1. Photo courtesy of arturodonate [↩]

I think we can dispense with the caption, just this once...

A defense attorney friend of mine called me up yesterday to say (I’m paraphrasing here), “You jackass.  Thanks to your Ogilvie proof every Applicant’s attorney I know is calling me up, gloating, and asking for 18 points on top of the whole person impairment on every case!  Why the hell did you do that???”[1]   My first thought was of my favorite quote from Swingers.[2] What I actually said was something along the lines of:

• It’s not like CAAA wouldn’t have found out about Ogilvie if it wasn’t for Jay Shergill mentioning it in a blog post.
• Nothing has changed except that now anyone can perform an Ogilvie adjustment calculation in their head.[3]
• Someone was going to prove that Ogilvie adds 18 points to the WPI in virtually all litigated workers’ compensation cases, so it might as well be me.

1. Photo courtesy of giuliomarziale [↩]
2. Just for you Ray! [↩]
3. And save $129.99 in the process [↩]
4. Hell, a permanent irreversible coma is only a WPI of 80. [↩]
5. Remember, just add 18 to the WPI! [↩]

THIS is how you do an expedited hearing

I obtained two walk through settlements yesterday morning.  I’m feeling pretty good.

Oh, did I forget to mention one was in Santa Rosa and the other in Oakland?[1]

What has four eyes and smells like burning rubber?

Me

1. Photo courtesy of brian.stein [↩]

Utilization Review Certified: 1 Fun Size Bag

A few weeks ago I posted about how swearing can reduce pain.[1] If you thought that was unbelievable, read on:

Researchers at University of Rochester Medical Center have apparently found that the dye in blue M&M’s can lessen the secondary effects of spinal injuries.[2] Those mice that received the injections of this blue dye recovered the ability to walk, and those without the injections did not.  The only side effect reported was, I kid you not, that the mice turned blue.

You can’t make this stuff up.  Anyhow, here’s the first ten jokes that occurred to me after reading that article:

1. The blue M&M’s replaced the tan M&M’s in 1995 when it was discovered the tan ones caused spinal injuries.[3]
2. Not to be outdone, Skittles researchers report their candies allow you to pee unicorns.
3. The WCAB has now issued another en banc opinion that the office candy jar constitutes the rendering of first aid.
4. *Disclaimer: This study was funded by The Great Pumpkin, the Easter Bunny, and the Mars Corporation.
5. It has now been discovered that the members of the Blue Man Group are impervious to spinal injuries.
6. …and that’s why the Smurfs have the lowest workers’ compensation premiums on the Cartoon Network.
7. Researchers also found that it was the blue dye in Viagra, not sildenafil citrate, that helped with erectile dysfunction.
8. The legislature has amended Labor Code 4604.5(d)(1) to allow a maximum of 24 ounces of M&M’s per industrial injury.
9. “Your honor, under Braewood v. WCAB (Bolton), Defendants must authorize the blue M&M’s in order to treat the underlying industrial condition.”
10. The Governor has added a new ballot measure that would replace the California MPN system with a new M&M based system.

I think the last one is my favorite.  :)

1. Photo courtesy of Daneen_vol [↩]
2. Via Slashdot [↩]
3. You remember the tan ones, don’t you? [↩]

Ogilvie for Dummies

UPDATE: DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!

Get ready to stop paying people to do Ogilvie calculations, recycle your Gearheart/Gerlach handouts, and delete your Frost Excel spreadsheet.[1]  We’re about to go all “Beautiful Mind.”

Yesterday while at the Oakland WCAB an Applicant’s attorney mentioned he noticed an interesting trend in the Ogilvie formula. [2][3] He said that whenever he does an Ogilvie calculation for someone with a 100% earnings loss and a modest WPI, the WPI is always increased by 18. [4]

I ran a number of test calculations on this theory and it appeared to be right.  My calculations show that up to a WPI of 44 the increase appears to always be 18.1, but the last “0.1″ always gets rounded down.  However, appearing to be right just isn’t good enough for me.  And, because I am just truly that nerd, here’s the fully mathematical proof:

Let’s break down the calculations at the heart of Ogilvie:

1. Earnings Loss[5][6]
   1. = (PIESSE – PIEA) / PIESSE
   2. = ($1.00 – $0.00) / $1.00
   3. = $1.00 / $1.00
   4. = 1
   5. = 100%
2. Individualized Proportional Earnings Loss
   1. = (WPI / Earnings Loss) / 100
   2. = (WPI / 100% )/100
   3. = (WPI / 1) / 100
   4. = WPI / 100
   5. Thus, for any WPI less than 45 and a total loss of earnings, the Individualized Earnings Loss will always be less than 0.450 in Table A.
3. DFEC Adjustment Factor
   1. = ([1.81/a] * .1) + 1
   2. = ( (1.81 * .1)/a) + 1
   3. = (.181/a) + 1
   4. = 1 + (.181/a)
4. Ogilvie DFEC Adjusted Rating
   1. = WPI * DFEC Adjustment Factor
   2. = WPI * (1 + (.181/a) )
   3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
   4. = WPI * (1 + (.181 / (WPI / 100) ) )
   5. = WPI * (1 + (.181 * 100 / WPI ) )
   6. = WPI * (1 + (18.1/ WPI ) )
   7. = WPI * ( (WPI/WPI) + (18.1/ WPI ) )
   8. = WPI * (WPI + 18.1/ WPI )
   9. = WPI * (WPI + 18.1/ WPI )
   10. = WPI + 18.1
5. Conclusion
   1. If you have an Applicant with a 100% post injury earnings loss and a WPI of 44 or less, you should rebut the FEC and arrive at an adjusted WPI that is equal to the original WPI plus 18.1.

Therefore, I propose a new Ogilvie formula that will be easy for anyone to remember:

• Step 1: If the injured worker has a 100% earnings loss and a WPI of 44 or less, add 18.1 to the WPI and round down.
• Step 2: If the injured worker has less than 100% earnings loss or a WPI of 45 or higher, go to Step 3.
• Step 3: For heaven’s sake, just make your life easier and use the calculators here at PDRater.com.

What do you think?  Leave a comment or drop me a line.

1. Sorry Jeff, Mark, Mark, and Ray! [↩]
2. Thank you “S”!  Unfortunately, he did not want to be named. [↩]
3. Man, I *wish* I could take credit for this observation. [↩]
4. Not multiplied by 18, but an addition of 18. [↩]
5. PIESSE = Post Injury Earnings of Similarly Situated Employees [↩]
6. PIEA = Post Injury Earnings of Applicant [↩]