I plan to launch a brand new calculator service tomorrow.1
I think you’re really really going to like it.
Want a hint?
It’s going to help you with a case that rhymes with “Schmogilvie.”
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?
Share your insight with an e-mail or comment.
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
If you’re using my Ogilvie calculator for situations involving a 100% earnings loss, you’re working too hard. 1
If you have 100% earnings loss and WPI less than 45, the Ogilvie adjustment formula will always result in WPI + 18.
Not to worry. I can make Ogilvie even easier:
The Ogilvie mathematical proof has been available for several weeks for peer review. I’ve only received positive feedback.2 The above Ogilvie Adjustment Chart has been testing by myself and other workers’ compensation attorneys, but like everything else on this site is provided subject to all legal disclaimers.
Here’s a peek at what they look like:
|
|
|
A defense attorney friend of mine called me up yesterday to say (I’m paraphrasing here), “You jackass. Thanks to your Ogilvie proof every Applicant’s attorney I know is calling me up, gloating, and asking for 18 points on top of the whole person impairment on every case! Why the hell did you do that???”1 My first thought was of my favorite quote from Swingers.2 What I actually said was something along the lines of:
For the moment, let’s set aside the issue of whether California’s injured workers have gotten a raw deal since SB899. Suppose there’s an injured worker with a finger injury, stays on temporary disability for two years, and is immediately made permanent and stationary. If instead they get a 0% WPI, they get nothing. If they gets a 1% WPI, Ogilvie tells us this person gets a DFEC adjusted WPI of 19%.
Nearly every litigated case involves an extended period of temporary disability and a whole person impairment less than 45.4 Ogilvie effectively removes the first 18% permanent partial disability levels.
I really don’t think the WCAB intended this consequence. Don’t get upset with me – as long as Ogilvie is the law I might as well make Ogilvie calculations easy for you, right?5
UPDATE: DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!
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:
Therefore, I propose a new Ogilvie formula that will be easy for anyone to remember:
What do you think? Leave a comment or drop me a line.
Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.
Have you got an article on workers’ compensation you’d like to see published? Drop me a line and let me know.1
Thanks Emily!
P.S. For those of who keeping score at home, this is my 200th post!!! That’s 200 posts in 357 days or roughly a post every 1.7 days.
I was at the San Jose WCAB on Friday. Since recently discovering that I could run this website’s permanent disability rating calculators from my phone’s web browser, this was the first time I left my rating manual, money chart, and date wheel in the car.1
It was great. That morning I used my phone to:
The benefit for me is not so much that I don’t have to carry the rating manuals, dollar value charts, and date wheels. Unlike these tools, my phone is not something I’m going to misplace or loan and never see again.
The best part is that if I want to refer back to the calculation I just performed, I can just e-mail it to myself!
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?
