Need more time to think about Ogilvie, Almaraz, and Guzman?
Need more time to think about Ogilvie, Almaraz/Guzman?

Sometimes even the WCAB needs more time to think.1

On March 26, 2009, the director of the Department of Industrial Relations, John C. Duncan, issued a letter to the entire Workers’ Compensation Appeals Board asking them to vacate their own decisions and solicit argument and amicus briefs.  Here’s a copy, courtesy of, the Letter from Director of DIR to WCAB re: Ogilvie and Almaraz/Guzman (3/26/2009).

On Monday April 6, 2009 the WCAB issued three Orders Granting Reconsideration and Order Allowing Amicus Briefs (en banc) in Ogilvie and Almaraz/Guzman.  For your review:

What does the Order Granting Reconsideration of Ogilvie and Almaraz/Guzman mean for you?

    1. Ogilvie and Almaraz/Guzman are still the law.  Despite Commissioner Aghazarian’s two concurring opinions, the WCAB did not issue a stay of either Ogilvie or Almaraz/Guzman.
    2. The WCAB has granted SCIF’s petition for reconsideration in Almaraz, granting reconsideration on their own motion in Guzman, and the parties’ petitions for reconsideration in Ogilvie.  They have granted reconsideration on these cases to, “afford us a sufficient opporutnity to study the issues.”2
    3. Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
      1. Photo courtesy of radiospike photography []
      2. Hence, the “The Thinker” reference above… []

      Workers Compensation Calculator
      Workers' Compensation Calculator

      I had an interesting e-mail exchange with a friend (and fellow workers’ compensation professional) the other day.1

      We were discussing the impacts of Ogilvie on 2005 schedule ratings.  He had asked me whether I intended to update the 2005 permanent disability rating calculator to include FEC Ranks after the scheduled 8.  I believe he had suggested FEC Ranks 9 through 20.

      I have no intention of manufacturing FEC Ranks 9 through 20 for the following reasons:

      • Maintaining Standards. The entire point of a rating schedule is to allow a standardized method for calculating disability and expressing those disability calculations.   If I invented my own FEC Rank system beyond the scheduled 1-8 Ranks, I would essentially be creating my own rating calculation system.  I’ve gone to considerable lengths to ensure that the rating strings produced by these permanent disability calculators are as standardized, recognizeable, and universal as possible.
      • FEC Ranks are Irrelevant. The FEC Rank system is a simplified method of applying DFEC adjustment factors.  When you use the FEC Rank of a particular body part to adjust the standard using the charts on pages 2-6 and 2-7 of the 2005 PDRS (permanent disability rating schedule), what you’re really doing is essentially multiplying your standard disability against the FEC adjustment factor associated with the particular FEC Rank for the body part in question.  An FEC Rank is only useful for telling you the appropriate FEC adjustment factor to apply to the standard disability.  Thus, FEC Ranks are irrelevant and FEC adjustment factors are all important.
      • Arbitrary FEC Ranks. FEC Rank 1 has an FEC adjustment factor of “1.100”.  However, using the Ogilvie DFEC rebuttal formula, it is possible to end up with very low FEC adjustment factors.  In extreme circumstances it would be possible to have a negative FEC adjustment factor.  The only way to resolve this would be to have several possible negative FEC Ranks.  Besides being somewhat silly, worrying about additional FEC Ranks2 misses the point.  If you’re using the Ogilvie DFEC rebuttal formula properly, the result will be a new FEC adjustment factor.  If you already have the FEC adjustment factor, you have no need for the FEC Rank!

      When I had discussed the impact of Ogilvie earlier, I had pointed out that in some cases the resulting formula will dictate that you use a different FEC Rank than the one indicated by the affected body part.  In other cases you will need to use an entirely new FEC adjustment factor.  In order to keep the 2005 disability calculator current I will eventually have to create a way for the user to override a body part’s standard FEC Rank and specify a new FEC Rank or their own FEC adjustment factor.

      I’m not in any particular rush to develop this feature since Ogilvie seems to require three years of post-injury earnings.  I doubt we’re going to see litigation begin in earnest over Ogilvie issues for another 18 to 24 months.

      1. Photo courtesy of Street Fly JZ []
      2. Both higher and lower than the normal 8 []

      So Many Calclators, So Little Time
      So Many Calclators, So Little Time

      After some additional testing and feedback, I have launched the Ogilvie Calculator aka DFEC Calculator aka Diminished Future Earning Capacity Calculator.1

      To all of my friendly beta-testers:  Thank you!

      So, what are you waiting for?  Signing up for this website is totally free and takes 30 seconds.  Log in, give it a whirl and let me know what you think.

      1. Photo courtesy of teclasorg. []

      Professor, tell me more of this DFEC rebuttal calculator...
      Professor, tell me more of this DFEC rebuttal calculator...

      Earlier today I installed an Ogilvie v. City and County of SF DFEC Rebuttal calculator into the free workers’ compensation calculators page on this website. 123 For the moment it is only available to people who have signed up for this website and asked to be a beta tester.  If all goes well, I’ll flip a switch and make it available to the public on Monday morning.

      At the moment it requires four pieces of information:

      1. FEC Rank (re: body part in question)
      2. Standard disability (re: body part in question)
      3. Post-injury earnings for Applicant
      4. 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 Schedule might 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 Schedule might 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.

      If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  That’s right: free as in free.

      1. Photo courtesy of Draggin []
      2. I had this EXACT same calculator as a kid! []
      3. Why, how did you spend your Friday night? []

      Need help with a workers compensation calculator?
      Need help with a workers' compensation calculator?

      I put out the call for help testing my Ogilvie DFEC rebuttal calculator and got a bite! 1 I wrote it two days ago and refined it a little bit last night.2

      If anyone else is interested in helping test this Ogilvie DFEC rebuttal calculator, please drop me a line and let me know.

      The ideal tester is someone who:

      1. Has read Ogilvie and understands how to do the Ogilvie DFEC rebuttal calculations
      2. Is willing to use the Ogilvie DFEC rebuttal calculator this weekend
      3. Is willing to e-mail me with feedback this weekend so I can launch it on Monday to the public

      If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.

      You heard me, free as in free.

      1. Photo courtesy of Joy of the Mundane. []
      2. Because I’m a total workers’ compensation nerd. []