Category: DFEC Rebuttal
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?
if within five years of the date of injury it later becomes clear that the employee’s individualized proportional earnings loss is significantly higher or lower than anticipated, a party may seek to reopen the issue of permanent disability by challenging the originally used DFEC adjustment factor.
I think we can expect to see a petition to reopen on any case that settled prior to 2/3/2009. 2
If you have 100% earnings loss and WPI less than 45, the Ogilvie adjustment formula will always result in WPI + 18.
Not to worry. I can make Ogilvie even easier:
- [Download not found].
- [Download not found]!
The Ogilvie mathematical proof has been available for several weeks for peer review. I’ve only received positive feedback.2 The above Ogilvie Adjustment Chart has been testing by myself and other workers’ compensation attorneys, but like everything else on this site is provided subject to all legal disclaimers.
Here’s a peek at what they look like:
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.
For the moment, let’s set aside the issue of whether California’s injured workers have gotten a raw deal since SB899. Suppose there’s an injured worker with a finger injury, stays on temporary disability for two years, and is immediately made permanent and stationary. If instead they get a 0% WPI, they get nothing. If they gets a 1% WPI, Ogilvie tells us this person gets a DFEC adjusted WPI of 19%.
Nearly every litigated case involves an extended period of temporary disability and a whole person impairment less than 45.4 Ogilvie effectively removes the first 18% permanent partial disability levels.