I plan to launch a brand new calculator service tomorrow. ((Photo courtesy of The School House))
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.. ((Photo courtesy of eliaspunch)) 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.” ((Ogilvie II, p1-2.))
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?
You may not want to hear this, but Ogilvie II is probably worse for Defendants than Ogilvie I. ((Photo courtesy of Lawrence Whittmore)) 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. ((February 3, 2009 is the day Ogilvie I came out.))
If you’re using my Ogilvie calculator for situations involving a 100% earnings loss, you’re working too hard. ((Photo courtesy of lincolnblues))
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. ((An anonymous source from the DWC actually called it “cool”!)) 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:
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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???” ((Photo courtesy of giuliomarziale)) My first thought was of my favorite quote from Swingers. ((Just for you Ray!)) 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. ((Hell, a permanent irreversible coma is only a WPI of 80.)) 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? ((Remember, just add 18 to the WPI!))
