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

Almarez/Guzman: Full steam ahead
Almarez/Guzman: Full steam ahead

Yesterday the 6th Appellate District of the California Court of Appeal issued a Writ of Review, denied Defendants’ request for a stay, and indicated that the matter would be set for oral argument. 1  If you would rather just read what they have to say, here it goes:

Petitioner’s request for a stay is denied. Petitioner’s request for judicial notice, filed on 10/16/09 is denied. The petition for writ of review is granted as follows: Let a writ of review issue ordering the WCAB to certify & return to this court is official record in Guzman v. Milpitas Unified School District & Keenan & Associates, WCAB case No. ADJ3341185 (SJO0254688), not later than 3/25/10. Respondents may file opposition on 3/25/10. Petitioners my reply to the opposition in 20 days after the opposition is filed in this court. The matter will be placed on calendar at a time & place to be specified by court order. Any party desiring oral argument shall so inform this court in writing on 3/25/10 by completing & returning to this court the attached “request for oral argument” form (P, E, WD)

What does this mean for you?  Well, it means at least another four months of Almarez/Guzman II.

The fastest I recall a case going from the granting of a Writ of Review to to Order after oral argument was about four months.  In that case (Rollick) the Court of Appeals had basically already made up their minds about the issues and had allotted each side 10 minutes of argument.  The oral argument in that case took place about four months after the Writ was granted and Order issued almost immediately after argument.  However, the issues presented by Almarez/Guzman II are considerably more intricate.

For more analysis on this decision check out the article on WCExec!

  1. Photo courtesy of jjjohn. []

Also not a valid permanent disability rating schedule for 2009
Also not a valid permanent disability rating schedule for 2009

I’ve been getting a lot of questions about the Draft 2009 Permanent Disability Rating Schedule.  There is no 2009 Permanent Disability Rating Schedule. 1

Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.

Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule.  The biggest change is in the application of the FEC rank adjustment.  Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%.  Additionally, the proposal suggested juggling the various ranks among the body regions.  If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.

Here’s the take-away:

  1. Photo courtesy of wenzday01 []

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 []