En Banc – PDRater – Permanent Disability Calculators

Big Questions regarding Proposed Regs

By Jay Shergill Posted on September 23, 2021 Posted in PDRater No Comments Tagged with En Banc

This is going to sound crazy, but I’m actually really looking forward to tomorrow’s online public hearing regarding the proposed additions and amendments to its Rules of Practice and Procedure. (If you want the “TLDR” version of these proposed regs, I recently posted a summary of these changes).

Board Rule § 10816 allows a party to provide notice they intend to appear electronically for any hearing upon a petition setting forth “good cause.”
1. What constitutes good cause to appear electronically?
Board Rule § 10815 sets forth the means for a party to object to a hearing or trial taking place by electronic means. There does not appear to be similar guidance under Board Rule § 10816 on requesting a live hearing or trial take place electronically.
1. Once a timely petition has been filed, is there any additional step that party needs to take to appear electronically or is such a petition presumed granted?
2. What if there is no response from the Board to such a notice of intention to appear electronically?
Board Rule § 10816 appears to relate to only the noticing party appearing electronically – and does not appear to require the hearing be conducted electronically for all parties. Prior to the pandemic the Board utilized the CourtCall system to permit one party to appear telephonically, irrespective of the preferences of other parties, and subject to judicial discretion.
1. Will the Board conduct hearings where some, but not all parties, are appearing electronically?
The WCAB decision “In Re: COVID-19 State of Emergency En Banc (Misc. No. 260),” 3/18/2020, suspended the requirement for witnesses and live signatures to settlement agreements as set forth in Cal. Code Regs., tit. 8, § 10500(b)(6) and DWC-CA forms 10214(c)-(e). Although parts of this decision relating to different regulations have been rescinded over the last 18 months, this particular change as it relates to allowing electronic signatures and witnesses has not been altered.
1. Will the WCAB En Banc Misc. No. 260 removing the requirement for live signatures and witnesses be made permanent or formalized in a regulation?

What questions do you have?

Photo courtesy of Benjamin Reay

The Role of Rehab Experts after Ogilvie II

By Jay Shergill Posted on September 16, 2009 Posted in 2005 PDRS, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with En Banc, expert testimony, Expert Witnesses, Pd, rebut, rebut 2005, rebut dfec, rebut pdrs, Rebuttal, rehab, rehab expert, rehabilitation, rehabilitation expert testimony, Wcab

: 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 ((Well, eight of the commissioners anyhow.)) 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. (( I received more than one letter demanding agreement to a vocational counselor under Ogilvie I.))

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.

Ogilvie II, Almaraz/Guzman II – More En Banc Opinions!

By Jay Shergill Posted on September 3, 2009 Posted in Almaraz / Guzman, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Workers Compensation Resources No Comments Tagged with almaraz, almarez, Compensation Appeals Board, Decisions, En Banc, guzman, Wcab

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. ((Photo courtesy of arturodonate)) Download the Ogilvie/Almaraz/Guzman decisions all in one place:

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

Guest Article from Vocational Expert Emily Tincher

By Jay Shergill Posted on June 27, 2009 Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Articles, Case Law, DFEC Rebuttal, Ogilvie, Vocational Rehabilitation, Workers Compensation Resources No Comments Tagged with almaraz, Better Science, Bouef, Civil Case, Clinical Evidence, Compensation Law, David And Goliath, En Banc, Espinoza, Gray Areas, Injured Workers, le bouef, Liberal Construction, Motivation Factor, Ptp, Rebuttal, Recapitulation, server, Trier Of Fact, Vocational Expert, Vocational Experts, Wcab

Always room for guest articles at PDRater!

Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.

Have you got an article on workers’ compensation you’d like to see published? Drop me a line and let me know. ((Photo courtesy of Stephen Cummings))

Thanks Emily!

P.S. For those of who keeping score at home, this is my 200th post!!! That’s 200 posts in 357 days or roughly a post every 1.7 days.

Why did the WCAB in Weiner kill vocational rehabilitation?

By Jay Shergill Posted on June 12, 2009 Posted in Case Law, PDRater, Vocational Rehabilitation, Website Updates, Workers Compensation Resources No Comments Tagged with 1/1/2009, ADJ 347040, Amicus Briefs, baby, bathwater, En Banc, final order, inchoate, January 1, january 1 2009, june 10, june 11, jurisdiction, Lawrence Weiner, MON 0305426, Ralph’s, repeal of vr, Sedgwick Claims Management Services, sunset of vr, vested rights, vr repeal, Wcab, wcab en banc, weiner, weiner v ralphs, wiener, wiener v ralphs

The WCAB: Throwing babies out with the bathwater since 1965

For context, its best to see the prior post about the WCAB’s Weiner v. Ralph’s (en banc) decision. There’s even a link to the Weiner v. Ralphs (en banc) decision for download – just so you can play along at home.

The question in the title of the post is really a question about the WCAB’s rationale – not their end legal justification behind Weiner. I believe the Weiner case hints that the WCAB is going to go the other way and uphold their rulings in Almaraz/Guzman and Ogilvie.

However, I think the WCAB’s rationale for ending vocational rehabilitation was because of the potential for enormous retroactive vocational rehabilitation maintenance allowance awards at the temporary total disability rate outside the cap (VRTD). ((Photo courtesy of Stephane Raymond)) ((You see, I’m suggesting that the bathwater is VRTD and the baby itself is vocational rehabilitation. Kinda kills the metaphor, eh?))

Tag: En Banc