Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

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 WCExec.com, 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… []

      Ready for testing: Future Life Pension Rate with SAWW/COLA

      XYZZXSJO2 - The motion picture!

      XYZZXSJO2 - The sequel!

      Last week I posted about a recent case from the San Jose WCAB that indicated a life pension SAWW1 increase is applied on the first January 1 after the date of injury.  You can find a download of the XYZZXSJO2 case here.

      I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access. 2

      Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator.  The actuarial math involved in performing that calculation is … intense.

      As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase.  Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used.  I was pretty disappointed to find this out.

      No matter!  Help beta test the new calculator by dropping me a line.  After you’ve given it a whirl, let me know what you think.

      1. SAWW means State Average Weekly Wage []
      2. If you have already helped me out as a beta tester, you already have access to this calculator. []

      XYZZXSJO2 – COLA and SAWW Increase Starts After the Date of Injury

      XYZZXSJO2 - The motion picture!

      XYZZXSJO2 - The motion picture!

      Last week while Steve was at the Sacramento WCAB he heard about a recent case that held the COLA / SAWW adjustments and increases are calculated based upon the first January 1 following the date of injury. 12

      This case involving SIF (the subsequent injuries fund) is from the San Jose WCAB.  The name of the case is “XYZZXSJO2 v. Subsequent Injuries Benefits Trust Fund, ADJ 1510738, SJO 0251902”.  The name of the Applicant was anonymized to protect their identity.  34

      Download a copy of XYZZXSJO2 now!

      Thus far the conventional wisdom has been that the COLA/SAWW increases are calculated starting with the first January 1 after life pension gets paid out.  This is a tremendous change in the COLA/SAWW calculation of life pension.

      Assuming a 1/1/2003 injury at exactly 70% permanent partial disability, there would be 426.5 weeks of permanent disability paid after the permanent and stationary date before the life pension gets paid out.  This equates to 8.2 years from the permanent and stationary date that has, thus far, not been taken into account with life pension calculations to date.  To put this in perspective, if someone had an injury on 1/1/2003 and became P&S on that same date5 , the traditional method of calculating the life pension with COLA / SAWW increase would be too low by approximately 44%.

      At the moment I’m finalizing a COLA / SAWW life pension calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access.

      Unfortunately, I don’t have a citation for the 4.7% COLA / SAWW increase, but I believe it to be the offiical average used by the DEU6 to calculate commutations of COLA / SAWW increases and adjustments.  If you have an official citation or document from the DEU, please drop me a line so I can include that citation here!

      1. COLA = cost of living adjustment. []
      2. SAWW = state average weekly wage. []
      3. I hope to have a scan of this decision for you soon! []
      4. David DePaolo of WorkCompCentral.com has graciously allowed me permission to offer you a copy of XYZZXSJO2 for download!  Thanks David! []
      5. Not likely. []
      6. Disaiblity Evaluation Unit. []

      Ogilvie and Almaraz, en banc

      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.  1 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 rebutted2 and how one might go about doing this.

      Pages 22 through 32 are basically nothing but math. 3  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:

      1. Photo courtesy of Kyle Kesselring []
      2. Basically just the DFEC portion. []
      3. Yay! []

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