2005 PDRS
Calculating Ogilvie
This afternoon I am presenting at the Workers’ Compensation Section Spring Conference 2010 with a presentation entitled, “Calculating Ogilvie.” Due to cases relevant to Ogilvie coming out as recently as ten days ago, I’m making the resources mentioned here for everyone to download (along with a rough outline of the presentation).
- Ogilvie Formula
- Ogilvie formula (longhand)
- Ogilvie formula (shorthand)
- Ogilvie formula (oversimplified)
- Ogilvie formula (18 point rule)
- Ogilvie Case Law
- Ogilvie v. WCAB I (en banc) 2/3/2009
- Ogilvie v. WCAB II (en banc) 9/3/2009
- Bowden v. Sunray Termite San Jose WCAB Panel Decision ADJ4536632
- Shini v. Pacific Coast Auto Body & Truck San Diego WCAB Panel Decision ADJ2079252 (1/25/2010)
- Ochoa v. UPS Ground Freight Order Denying and Report and Recommendation on Reconsideration ADJ1758338 (2/8/2010)
- Bertha Noriega Garcia v. Patrick L. Hinrichsen WCAB Panel Decision ADJ6721939 (3/1/2010)
- Litigating Ogilvie
- Applicant Attorney Ogilvie Handbook
- Defense Attorney Ogilvie Handbook
- Appendix
- EDD Labor Market Information Division
- Cal. Labor Code § 4651 “Average annual earnings shall be taken as fifty-two times the average weekly earnings referred to in this chapter.”
Sample Ogilvie DFEC analysis brief, complete with citations, explanations, and exhibits
Writ Granted on Almarez/Guzman!
Yesterday the 6th Appellate District of the California Court of Appeal issued a Writ of Review, denied Defendants’ request for a stay, and indicated that the matter would be set for oral argument. 1 If you would rather just read what they have to say, here it goes:
Petitioner’s request for a stay is denied. Petitioner’s request for judicial notice, filed on 10/16/09 is denied. The petition for writ of review is granted as follows: Let a writ of review issue ordering the WCAB to certify & return to this court is official record in Guzman v. Milpitas Unified School District & Keenan & Associates, WCAB case No. ADJ3341185 (SJO0254688), not later than 3/25/10. Respondents may file opposition on 3/25/10. Petitioners my reply to the opposition in 20 days after the opposition is filed in this court. The matter will be placed on calendar at a time & place to be specified by court order. Any party desiring oral argument shall so inform this court in writing on 3/25/10 by completing & returning to this court the attached “request for oral argument” form (P, E, WD)
What does this mean for you? Well, it means at least another four months of Almarez/Guzman II.
The fastest I recall a case going from the granting of a Writ of Review to to Order after oral argument was about four months. In that case (Rollick) the Court of Appeals had basically already made up their minds about the issues and had allotted each side 10 minutes of argument. The oral argument in that case took place about four months after the Writ was granted and Order issued almost immediately after argument. However, the issues presented by Almarez/Guzman II are considerably more intricate.
For more analysis on this decision check out the article on WCExec!
2009 Permanent Disability Rating Schedule
I’ve been getting a lot of questions about the Draft 2009 Permanent Disability Rating Schedule. There is no 2009 Permanent Disability Rating Schedule. 1
Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.
Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule. The biggest change is in the application of the FEC rank adjustment. Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%. Additionally, the proposal suggested juggling the various ranks among the body regions. If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.
Here’s the take-away:
- The 2009 Draft Permanent Disability Rating Schedule was not approved.
- The only official schedule for injuries on or after 1/1/2005 is the current 2005 Permanent Disability Rating Schedule.
- The DEU’s own webpage, updated on 10/2009 as of the date of this posting, doesn’t even offer a link to the 2009 draft schedule.
Do-It-Yourself Ogilvie DFEC Analysis
An Ogilvie / DFEC analysis isn’t really difficult, especially when this website has a free Ogilvie / DFEC calculator.1 The problem comes when you have to prove all the math behind those calculations. This involves “showing your work.”
The best way to “show your work” is to take the reader through each step of the Ogilvie analysis. I’ve prepared a sample report (generated using a new service on this website) which provides a clear and easy to understand format for “showing your work.”
The steps are basically this:
- Step 0: 2005 PDRS rating string
- Step 1: Post-Injury Earnings of Applicant
- Step 2: Post-Injury Earnings of Similarly Situated Employees
- Step 3: Calculate Proportional Earnings Loss
- Step 4: Calculate Individualized Rating to Loss Ratio
- Step 5: Compare Individualized Rating to Loss Ratio to range of ratios for the FEC ranks
For those interested, here’s a more detailed explanation of each step in an Ogilvie / DFEC analysis.
When each step of the Ogilvie / DFEC analysis is stated clearly, the reader can see every assumption, step, and perform their own calculations to verify your conclusions. As long as the parties agree on the numbers used in an Ogilvie / DFEC calculation, they should always arrive at the same result.
Setting forth every single step of your Ogilvie / DFEC analysis lets you to spend less time arguing about the impact of Ogilvie and more time trying to get the case settled.
- Photo courtesy of indigotimbre [↩]
Ogilvie: Building the Case Part I
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.”
What are Judges in your area requiring?
- Just wage data and calculations?3
- Vocational testimony/evidence regarding earnings?
- Proof of attempts to seek employment/motivation?
- Something else?
Share your insight with an e-mail or comment.
- Photo courtesy of eliaspunch [↩]
- Ogilvie II, p1-2. [↩]
- Perhaps just a print-out from PDRater? ;) [↩]
Ogilvie Calculations Made Simple, II
DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!
A little while ago William S. Morris, an Applicant’s attorney, told me that the Ogilvie adjustment calculation could be further simplified. 1 He suggested the following2 :
- Earnings Loss34
- L = (PIESSE – PIEA) / PIESSE
- Individualized Proportional Earnings Loss
- = (WPI / L) / 100
- DFEC Adjustment Factor
- = ([1.81/a] * .1) + 1
- = ( (1.81 * .1)/a) + 1
- = (.181/a) + 1
- = 1 + (.181/a)
- Ogilvie DFEC Adjusted Rating
- = WPI * DFEC Adjustment Factor
- = WPI * (1 + (.181/a) )
- = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
- = WPI * (1 + (.181 / ( (WPI / L) / 100) ) )
- = WPI * (1 + (18.1 / ( (WPI / L) ) )
- = WPI * (1 + (18.1 * (L/WPI) ) )
- = WPI + (18.1 * L)
- Conclusion
- If the injured workers’ individualized proportional earnings loss is outside all of the FEC ranks, you may calculate the Ogilvie adjustment by adding (18.1*Earnings Loss) to the WPI.
The only flaw with the proofs offered by William and myself is that they are too exact. The WCAB in Ogilvie never sets forth the exact process for performing the Ogilvie adjustment calculation – so the only official method involves rounding to different significant figures at different places. Thus, a calculation performed in strict accordance with the WCAB in Ogilvie and through one of these mathematical proofs would differ very slightly.
What do you think? Leave a comment or drop me a line.
The Role of Rehab Experts after Ogilvie II
- 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 WCAB1 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.2
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.
- Well, eight of the commissioners anyhow. [↩]
- I received more than one letter demanding agreement to a vocational counselor under Ogilvie I. [↩]
Is Ogilvie II worse for Defendants than Ogilvie I?
You may not want to hear this, but Ogilvie II is probably worse for Defendants than Ogilvie I. 1 Check out page 32:
if within five years of the date of injury it later becomes clear that the employee’s individualized proportional earnings loss is significantly higher or lower than anticipated, a party may seek to reopen the issue of permanent disability by challenging the originally used DFEC adjustment factor.
I think we can expect to see a petition to reopen on any case that settled prior to 2/3/2009. 2
- Photo courtesy of Lawrence Whittmore [↩]
- February 3, 2009 is the day Ogilvie I came out. [↩]
Ogilvie II, Almaraz/Guzman II – Reader Digest Versions
First off, if you haven’t already downloaded Ogilvie II and Almaraz/Guzman II, do so now!
As I mentioned previously, each of these cases is about 50 pages long, so there is clearly no substitute for reading them for yourself. However, here’s Ogilvie II and Almaraz/Guzman II in five sentences:1
- Ogilvie v. WCAB II:
- The WCAB ruled the original Ogilvie (I) formula is still valid.
- The WCAB appears to have created a right to reopen a case for “individualized proportional earnings loss.”
- Vocational testimony is not an appropriate way to dispute the DFEC portion of the 2005 Permanent Disability Rating Schedule.
- (Bonus Dissent Summary: The lone dissent by Caplane says that vocational testimony should be considered proper rebuttal to an entire permanent disability rating.)
- Almaraz/Guzman II:
- The WCAB ruled that a doctor must issue reports within the “four corners” of the AMA Guides 5th Edition to comply with Labor Code Section 4660(c). 2
- However, either party may obtain rebuttal evidence in the form of supplemental reports and depositions regarding the use of any other chapter, method, or table within the AMA Guides.
- (Bonus Dissent Summary: The dissenting opinion from Brass, Caplane, and Moresi says they would affirm their decision in Almaraz/Guzman I.)
What do these cases mean for the practitioner?
- The WCAB has created a new right to reopen for a higher than expected “individualized proportional earnings loss.”
- The Ogilvie Mathematical Proof of 18 Point Add-Ons still stands.
- I see even more doctor depositions in my future.
- My phone is going to be ringing off the hook tomorrow.