You may not want to hear this, but Ogilvie II is probably worse for Defendants than Ogilvie I. ((Photo courtesy of Lawrence Whittmore)) Check out page 32:
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.
The Ogilvie mathematical proof has been available for several weeks for peer review. I’ve only received positive feedback. ((An anonymous source from the DWC actually called it “cool”!)) 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.
At the moment it requires four pieces of information:
FEC Rank (re: body part in question)
Standard disability (re: body part in question)
Post-injury earnings for Applicant
Post-injury earnings for employees similarly situated to Applicant
Once you add in that information, click “Calculate” and it should crunch through the formula and give you a response. The WCAB in Ogilvie suggested several possible outcomes to this formula:
The “Individualized Loss Ratio” for the injured worker is the same or within the range for the current FEC Rank for the affected body part. In this circumstance, the 2005 DFEC has not been rebutted.
The “Individualized Loss Ratio” for the injured worker is within the range of one of the other seven FEC Ranks. Here, the DFEC portion of the 2005 Permanent Disability Rating Schedulemight be rebutted.
The “Individualized Loss Ratio” for the injured worker is outside the range of all eight FEC Ranks. In this circumstance, you could end up with a new FEC Adjustment Factor much higher or lower than any FEC Adjustment Factor associated with the eight FEC Ranks. Here, the DFEC portion of the 2005 Permanent Disability Rating Schedulemight be rebutted.
Obviously, there are innumerable factors that go into considerations of whether a Judge (or the WCAB) would find the DFEC portion of the 2005 Permanent Disability Rating Schedule to be rebutted. This calculation and the information relied upon in performing this calculation cannot be taken as a guarranteed method of rebutting the DFEC portion of the 2005 Permanent Disability Rating Schedule.
