Category: Ogilvie

By Posted on Posted in Case Law, Ogilvie, Vocational Rehabilitation, Workers Compensation Resources No Comments Tagged with , , , , , , ,
Just a red herring
Just a red herring

In a word, no.  Ogilvie has not been stayed by the WCAB, Court of Appeals, or any other court at this time.  ((Photo courtesy of jypsygen))

A defense attorney is circulating a letter suggesting that he got the Board to agree on Reconsideration to stay the application of Ogilvie on a case until the Supreme Court decides on the issue.

First, let me preface by saying the Board might theoretically decide to not apply the DFEC rebuttal analysis under Ogilvie for any number of reasons:

  • Perhaps the defense vocational expert witness was particularly persuasive
  • Perhaps the injured worker was a terrible witness
  • Perhaps the Board noted a particularly disproportionate effect of Ogilvie
  • Perhaps there were a lot of “motivational” issues for the injured worker
  • Perhaps the injury was less than 3 years old

Secondly, even if the Board found a way to decline to apply the DFEC rebuttal analysis under Ogilvie in one circumstance, this does not stay or overrule Ogilvie.  We would need to see something from either the Court of Appeals or another ((Third!!!)) en banc Ogilvie decision from the WCAB.

Thirdly, while I have not seen the documentation to prove it, I have learned the Board declined to apply the DFEC rebuttal analysis under Ogilvie due to some technical issue not having much to do with the actual Ogilvie case.

So, to recap – Ogilvie has not been stayed.  If someone claims otherwise, ignore them until they produce the case.  And when you see it… send me a copy!

By Posted on Posted in 2005 PDRS, AMA Guides, Case Law, Ogilvie, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with , , , , , , , , , ,
If you can use duct tape, you can perform an Ogilvie DFEC analysis in 5 minutes
If you can use duct tape, you can perform an Ogilvie DFEC analysis in 5 minutes

An Ogilvie / DFEC analysis isn’t really difficult, especially when this website has a free Ogilvie / DFEC calculator. ((Photo courtesy of indigotimbre)) 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.

By Posted on Posted in Calculators, DFEC Rebuttal, Ogilvie, PDRater, Workers Compensation Resources No Comments Tagged with , , , , ,
An early Christmas for PDRater users!
An early Christmas for PDRater users!

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.”

By Posted on Posted in 2005 PDRS, Articles, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Wage Loss, Workers Compensation Resources No Comments Tagged with , , , , , , , , , , , , ,
Building the case for a DFEC rebuttal
Q: How do you build the case for a DFEC rebuttal? A: One step at a time.

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?

  • Just wage data and calculations? ((Perhaps just a print-out from PDRater?  ;) ))
  • Vocational testimony/evidence regarding earnings?
  • Proof of attempts to seek employment/motivation?
  • Something else?

Share your insight with an e-mail or comment.

By Posted on Posted in 2005 PDRS, AMA Guides, Ogilvie, Technobabble, Wage Loss, Workers Compensation Resources No Comments Tagged with , , , , , , , , , , , , , , , , , , ,
Back to the drawing board
Back to the drawing board

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.  ((Photo courtesy of Dahveed76)) He suggested the following ((I’m paraphrasing here)) :

  1. Earnings Loss ((PIESSE = Post Injury Earnings of Similarly Situated Employees)) ((PIEA = Post Injury Earnings of Applicant))
    1. L = (PIESSE – PIEA) / PIESSE
  2. Individualized Proportional Earnings Loss
    1. = (WPI / L) / 100
  3. DFEC Adjustment Factor
    1. = ([1.81/a] * .1) + 1
    2. = ( (1.81 * .1)/a) + 1
    3. = (.181/a) + 1
    4. = 1 + (.181/a)
  4. Ogilvie DFEC Adjusted Rating
    1. = WPI * DFEC Adjustment Factor
    2. = WPI * (1 + (.181/a) )
    3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
    4. = WPI * (1 + (.181 / ( (WPI / L) / 100) ) )
    5. = WPI * (1 + (18.1 / ( (WPI / L)  ) )
    6. = WPI * (1 + (18.1 * (L/WPI) ) )
    7. = WPI + (18.1 * L)
  5. Conclusion
    1. 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.