Could THIS be the elusive Ogilvie formula?
Could THIS be the elusive Ogilvie formula?

So, here’s the deal:  I want to build the absolute most comprehensive suite of calculators and tools for workers’ compensation professionals.  ((Why?  Some people have wacky hobbies.  Maybe you build hockey arenas out of toothpicks.  I build workers’ compensation calculators and give them away for free.  If it will put you at ease, I hope to make money from advertising in the future.))  I also want your help to making them better.

In the last few days several people have sent me questions about the Ogilvie DFEC workers’ compensation calculator: ((Photo courtesy of nerissa’s ring))

  1. Is it possible to get an Ogilvie DFEC adjusted whole person impairment above 100%?
    • I believe it might be theoretically possible to achieve an adjusted whole person impairment above 100% using the Ogilvie DFEC formula.  I could easily include a small variation on the calculation that would prevent it from exceeding 100, but I have not done so because I wanted to replicate the the formulas set forth in Ogilvie as exactly as possible.
  2. Why can’t I use post-injury earnings of $0.00?  What if they have no earnings at all?
    • That’s an extremely valid point.  If you try to use a post-injury earnings of “zero”, it will cause division by “zero” which is not a mathematically legal operation.  Try post-injury earnings of $1.00 or $0.01.  Doing so will give you an answer VERY close to what you need.  ((I know it has a less than friendly error message about this. I’ll see what I can do about fixing that.))
  3. When do you round each calculation when performing the Ogilvie DFEC calculation?
    • The WCAB en banc in Ogilvie rounds to three decimal places at one step and to four decimal places at a second step.  The only way we know what they actually did is by extrapolating from the examples in the decision – they never actually state “round to four significant digits here, round to three significant digits there.”  I have rounded exactly as they did in their examples.
    • At the end of the day, there are two ways to perform the Ogilvie DFEC calculation:  the exact way the WCAB did it (sometimes four, sometimes three decimal places) and the way they probably intended to do it (four decimal places until the end).  I made the judgment call to use the formula as they performed it, warts and all.
    • Why did I choose to round as the WCAB did?  I think it is more defensible to calculate exactly as the Board did, rather than as I think the Board should have calculated.
  4. How do you put the Ogilvie DFEC adjusted whole person impairment into the rating calculator?
    • At this point, you can’t use a different FEC Rank or an Ogilvie DFEC adjustment factor in the 2005 PDRS rating calculator on this site.  In order to accomodate this, I would need to either rewrite the entire calculator or write a new calculator.  One other possibility is that I could modify the Ogilvie DFEC calculation to provide one extra line of information – where it “runs the FEC numbers backwards.”
    • Let’s take this example:  Suppose the body part FEC rank is 1 and whole person impairment is 10.  The normal FEC adjusted whole person impairment would be 11.  Let’s suppose after applying the Ogilvie DFEC formula it turns out you should have an FEC rank of 8 instead.  This would give you an Ogilvie DFEC adjusted whole person impariment of 14%.  I could write a modification of the current Ogilvie DFEC calculator to put 14% into the FEC Rank chart and look up what whole person impairment you would need with an FEC rank of 1 to arrive at 14%.  Would you find this a helpful interim fix?  Please let me know by sending me an e-mail.
  5. Jay, why in the world did the Ogilvie DFEC calculator reference “standard disability”?  Shouldn’t it say “whole person impairment”?
    1. You’re totally correct.  I’ve fixed this.  Mea culpa.

Here’s my request for your help.  In order to make an Ogilvie calculation valid, you need to put in valid post-injury earnings of similarly situated employees.  The WCAB in Ogilvie suggests several possible sources: ((I’ve copied the links directly from Ray Frost‘s Ogilvie spreadsheet/calculator.  Ray has been kind enough to allow me the use of his extensive work restrictions lists.  So, thanks Ray!))

What do you use for post-injury earnings of similarly situated employees?  If I had a better idea where people were looking it is possible that I might be able to automate the inclusion of this informaiton as well.  Please drop me a line and let me know.   If there is a general consensus, I’ll look into the possiblity of having this informaiton automatically imported from an external website.

AMA Guides 5th Ed.
AMA Guides 5th Ed.

Clearly, Almaraz/Guzman has been a boon to the U.S. Postal Service.  I’ve been receiving Almaraz/Guzman letters from Applicant attorneys on my files ever since the en banc decision came out.  These letters typically fall into one of three categories:

  1. Increased demands for settlement
  2. Demands for additional discovery per Almaraz/Guzman
  3. Letters to the PQME/AME requesting their opinions on impairment outside the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition

I’ve also heard of some doctors completely abandoning the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition, in favor of just analogizing impairment.  This is not what was intended by the en banc panel in WCAB in Almaraz/Guzman.

Here’s what Almaraz/Guzman means for workers’ compensation practitioners:

So, remember:

  1. Whether you agree with the AMA Guides or the 2005 PDRS they’re still the law of the land and must be addressed.
  2. Whether you agree with Almaraz/Guzman, it’s still good law and must be addressed.
  3. Almaraz/Guzman does not absolve a doctor from the responsibility to generate a medical report which addresses the AMA Guides and constitutes substantial medical evidence.

Indy 500
Indy 500

Wow!  500 registered users!

Last month I mentioned that this website had a record number of new visitors.  I honestly thought that was an anomalous one day spike in traffic.  Instead we’ve had a sustained increase in new visitors and people signing up to use the workers’ compensation calculators for free.

Since February 13, 2009 ((When the 400th user registered.)) I’ve enjoyed posting about:

Ever since I relaunched this website I’ve had this idea in the back of my mind that getting to 500 users would be a big deal.  There are literally hundreds of workers’ compensation professionals who rely on this website and its calculators to make their lives a little easier.  This certainly feels like a big deal to me.

Get your head out of the sand!
Get your head out of the sand!

UPDATE 9/3/2009:  Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

There are numerous workers’ compensation professionals who are incredibly unhappy with Ogilvie and Almaraz/Guzman.  Vocational experts are unhappy with Ogilvie, and somewhat hopeful with Almaraz/Guzman.  Impairment rating specialists are not happy with Ogilvie or Almaraz/Guzman.  These people may be unhappy with these new cases, but at least they’re starting to adapt.

As Julius Young of WorkCompZone.com just reported, some people are dealing with Almaraz/Guzman by putting on “webinars.”  Phil Walker and Christopher Brigham have each announced “webinars.”  According to Walker’s promotional e-mail, he charges $2,000.00 to appear for a one day seminar – and now he’s giving it away for free.

People will try to convince you that Almaraz/Guzman is not the law or “just” a WCAB decision.  Do not believe these people.  Ogilvie and Almaraz/Guzman are both en banc cases.

En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and workers’
compensation judges. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109, 120, fn. 5]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6 [67 Cal.Comp.Cases 236, 239, fn. 6]; see also Gov. Code, § 11425.60(b).)

Ogilvie and Almaraz/Guzman are binding precedent on judges and the WCAB itself.  Don’t believe the hype and don’t stick your head in the sand.  ((Photo courtesy of blakeimeson)) If you argue it is not the law or not binding precedent, you will lose.  Yes, these cases may be appealed and may even be overturned.

I think it likely they will be appealled and highly unlikely they will be overturned.

Whats the WCAB doing NOW???
What's the WCAB doing NOW???

UPDATE 9/3/2009:  Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

Need a FREE sample Ogilvie analysis brief complete with citations?

Some crazy stuff has happened in the last two days.  ((Photo courtesy of Kyle Kesselring)) Two big en banc decisions were just handed down from the WCAB. Here they are, hot off the presses and ready for downloading:

Of the two cases, I enjoyed Ogilvie v. City and County of San Francisco much more.  This case describes to what extent the 2005 Permanent Disability Rating Schedule may be rebutted ((Basically just the DFEC portion.)) and how one might go about doing this.

Pages 22 through 32 are basically nothing but math.  ((Yay!))  These pages detail the information and methodology necessary to rebut the DFEC portion of the 2005 Schedule.

Last night I wrote a prototype calculator which will allow you to determine whether you may or may not be able to rebut the DFEC portion of the 2005 Permanent Disability Rating Schedule.  This calculator would only perform the DFEC rebuttal calculations suggested in the majority opinion, since this is now the law of the land.  My plan is to test it this weekend and launch it Monday.

However, if anyone is interested in helping me test it, I would appreciate the help.  Just drop me a line and I’ll give you the link as soon as its ready.

In the meantime, if you want to crunch the numbers yourself (or follow along with the WCAB in Ogilvie), you will probably find Table A and Table B page 1-7 of the 2005 PDRS to be very helpful.

FYI, there are a lot of “footnotes” in Ogilvie that reference various online documents or websites.  I’ve downloaded a copy or provided a screenshot of each of these pages for your reference: