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.”
Get ready to stop paying people to do Ogilvie calculations, recycle your Gearheart/Gerlach handouts, and delete your Frost Excel spreadsheet.1 We’re about to go all “Beautiful Mind.”
Yesterday while at the Oakland WCAB an Applicant’s attorney mentioned he noticed an interesting trend in the Ogilvie formula. 23 He said that whenever he does an Ogilvie calculation for someone with a 100% earnings loss and a modest WPI, the WPI is always increased by 18. 4
I ran a number of test calculations on this theory and it appeared to be right. My calculations show that up to a WPI of 44 the increase appears to always be 18.1, but the last “0.1” always gets rounded down. However, appearing to be right just isn’t good enough for me. And, because I am just truly that nerd, here’s the fully mathematical proof:
Let’s break down the calculations at the heart of Ogilvie:
I’ve been working on an easy way to allow a user to look up and quickly insert the FEC rank for the affected body part. I finally got around to building it a few days ago and launched it this morning. Please give it a shot and let me know what you think.
Type in the FEC rank OR click “FEC Rank (1-8)” and click on the injured body part. It will look up the FEC rank and insert it for you.
Type in the “Whole Person Impairment”
Type in the “Post Injury Earnings of Applicant”
Type in the “Post Injury Earnings of Similarly Situated Employees” OR click the link to obtain some information from the EDD Labor Market Information Division (LMID) and US Department of Labor, Bureau of Labor Statistics (BLS).