Workers Compensation Resources

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Jan
12
2010
Case Law, Ogilvie, PDRater, Workers Compensation Resources

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This sign is ALSO not a stay on Ogilvie
This sign is ALSO not a stay on Ogilvie

I’m still getting e-mails suggesting that Bowden v. Sunray Termite is a WCAB Panel decision staying Ogilvie. 1  Thanks to some loyal readers, I now have a copy of this Panel decision:

[Download not found]
  1. Photo courtesy of loop_oh [↩]
Dec
28
2009
Case Law, Ogilvie, Vocational Rehabilitation, Workers Compensation Resources

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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. 1

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 another2 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!

  1. Photo courtesy of jypsygen [↩]
  2. Third!!! [↩]
Dec
18
2009
Average Weekly Wage, Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Temporary Total Disability, Workers Compensation Resources

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Double dip done right
Double dip done right

Some commentators have suggested that the recent Duncan v. WCAB (X.S.) case creates a “double dip” for injured workers entitled to permanent total disability benefits. 1  While I would take issue with much of that commentary, I would agree that permanent total disability benefits are affected by changes in the state average weekly wage twice under Duncan v. WCAB (X.S.).  Of the four benefits in California workers’ compensation system that are affected by changes in the SAWW, only permanent total disability benefits are affected twice.

It took the patient guidance of a very smart friend to help me to understand how this works:

  • When determining the proper starting rate for a permanent total disability case, you must first turn to Cal. Labor Code § 4453(a)(10).  This statute dictates that the limits (as in the statutory minimum and statutory maximum limits) are to be increased by the increase in the state average weekly wage (or SAWW).
  • However, according to Cal. Labor Code § 4659(c) as interpreted by Duncan v. WCAB (X.S.), the benefit rates themselves are then increased by the increase in the state average weekly wage (or SAWW).

Is it “double dipping” to have both the upper/lower limits and benefit rates increased by the SAWW?

Perhaps, but that’s what the two statutes say and what the Court of Appeals has decided.

  1. Photo courtey of alex012 [↩]
Dec
17
2009
Average Weekly Wage, Case Law, COLA, Death Benefits, Life Pension, Permanent Total Disability, SAWW, Temporary Total Disability, Workers Compensation Resources

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Getting a handle on the SAWW
Getting a handle on the SAWW

Four benefits in California workers’ compensation are affected by changes in the state average weekly wage (or SAWW).1

  1. Temporary total disability benefits
    • The maximum and minimum benefit rates can be affected by the SAWW.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
  2. Life pension benefits
    • The statutory life pension rates are now increased by the SAWW as directed by the recent Duncan v. WCAB (X.S.) case.
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  3. Permanent total disability benefits
    • First, the minimum and maximum limits for permanent total disability benefits are increased, then the benefit rates themselves are increased.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  4. Death benefits
    • “A death benefit in all cases shall be paid in installments in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders.” Cal. Labor Code § 4702(b).

Did I just describe two increases to the permanent total disability benefit rate?  Huh, so I did.

Tune in tomorrow for more on Duncan v. WCAB, COLA’s, and SAWW increases!

  1. Photo courtesy of Sean Venn [↩]
Dec
16
2009
Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Workers Compensation Resources

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Putting some teeth in the SAWW
Putting some teeth in the SAWW

We’ve all seen charts with the State Average Weekly Wage (“SAWW”) increases printed on them.1 But, how useful are these when you’re dealing with an opposing counsel who won’t accept your chart or calculations based on that chart?

It sure would be nice to have all the SAWW information from the Division of Workers’ Compensation all in once place.  Well, it just so happens I’ve already done this for you.

Here is a copy of every DWC Newsline from 2003 through 2009 with information on every SAWW increase from 2004 through 2010, all ready to go in one handy-dandy PDF.

[Download not found]

Share and enjoy!

More on Duncan v. WCAB, COLA’s, and SAWW increases tomorrow!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of Aeioux [↩]
Dec
15
2009
Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Workers Compensation Resources

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Mini version of Duncan v. WCAB
Mini version of Duncan v. WCAB

In the spirit of my recent post summing up Ogilvie II and Almaraz/Guzman II in just three sentences each, I bring you a summary of the recent Duncan v. WCAB decision in just one sentence:1

The COLAs found in section 4659, subdivision (c) should be applied to life pensions or total permanent disability compensation as from January 1, 2004.2

Yes, that’s really it.  The Duncan decision consists mostly of background and discussion.  The actual decision is basically that one line above.

Come back tomorrow for more information about SAWW increases, COLA calculations, and more!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of MarkAllanson [↩]
  2. Duncan v. WCAB, page 18. [↩]
Dec
14
2009
2005 PDRS, AMA Guides, Case Law, Ogilvie, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources

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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.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.

  1. Photo courtesy of indigotimbre [↩]
Dec
9
2009
Calculators, DFEC Rebuttal, Ogilvie, PDRater, Workers Compensation Resources

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An early Christmas for PDRater users!
An early Christmas for PDRater users!

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.”

  1. Photo courtesy of The School House [↩]
Dec
6
2009
Calculators, Case Law, COLA, Commutation, Death Benefits, Permanent Total Disability, SAWW, Workers Compensation Resources

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It looks like someone took a SAWW to that COLA
It looks like someone took a SAWW to that COLA!!!

You’re probably just here to download the latest workers’ compensation case about the Cost of Living Adjustment and State Average Weekly Wage increases. 12 I’m not going to hold you in suspense – here’s the download link:

[Download not found]

Obviously, you need to read the entire decision for yourself.  Here’s my oversimplification of the case:

Whenever the injured worker is due life pension payments for injuries on or after 1/1/2003, you calculate those benefits, whenever they are due, by increasing them according to the yearly increases in the state average weekly wage starting on 1/1/2004.

If some of this seems familiar, its because this is the same case as XYZZXSJO2 which came out back in February 2009.   I had suggested back in February that the effect of the COLA increases on life pension payments today would be to increase them some 44% or so.

Still having trouble understanding the impact of this case?  Well, you could try my XYZZXSJO2 calculator to tell you what the life pension rate should be during a given year.  (Remember, this just tells you the rate – it is not a commutation calculator.  These are still in the works).

What are your thoughts on Duncan v. WCAB?

http://www.flickr.com/photos/79874304@N00/386160373/
  1. Photo courtesy of Sister72 [↩]
  2. I refuse to apologize for that pun. [↩]
Nov
12
2009
2005 PDRS, Articles, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Wage Loss, Workers Compensation Resources

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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.. 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.

  1. Photo courtesy of eliaspunch [↩]
  2. Ogilvie II, p1-2. [↩]
  3. Perhaps just a print-out from PDRater?  ;) [↩]