Workers Compensation Resources
Ogilvie: the finger pointing begins
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:
- It’s not like CAAA wouldn’t have found out about Ogilvie if it wasn’t for Jay Shergill mentioning it in a blog post.
- Nothing has changed except that now anyone can perform an Ogilvie adjustment calculation in their head.3
- Someone was going to prove that Ogilvie adds 18 points to the WPI in virtually all litigated workers’ compensation cases, so it might as well be me.
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
Any hearing can be an expedited hearing
I obtained two walk through settlements yesterday morning. I’m feeling pretty good.
Oh, did I forget to mention one was in Santa Rosa and the other in Oakland?1
What has four eyes and smells like burning rubber?
Me
- Photo courtesy of brian.stein [↩]
Breaking News: M&M’s Effective In Treating Spinal Injuries
A few weeks ago I posted about how swearing can reduce pain.1 If you thought that was unbelievable, read on:
Researchers at University of Rochester Medical Center have apparently found that the dye in blue M&M’s can lessen the secondary effects of spinal injuries.2 Those mice that received the injections of this blue dye recovered the ability to walk, and those without the injections did not. The only side effect reported was, I kid you not, that the mice turned blue.
You can’t make this stuff up. Anyhow, here’s the first ten jokes that occurred to me after reading that article:
- The blue M&M’s replaced the tan M&M’s in 1995 when it was discovered the tan ones caused spinal injuries.3
- Not to be outdone, Skittles researchers report their candies allow you to pee unicorns.
- The WCAB has now issued another en banc opinion that the office candy jar constitutes the rendering of first aid.
- *Disclaimer: This study was funded by The Great Pumpkin, the Easter Bunny, and the Mars Corporation.
- It has now been discovered that the members of the Blue Man Group are impervious to spinal injuries.
- …and that’s why the Smurfs have the lowest workers’ compensation premiums on the Cartoon Network.
- Researchers also found that it was the blue dye in Viagra, not sildenafil citrate, that helped with erectile dysfunction.
- The legislature has amended Labor Code 4604.5(d)(1) to allow a maximum of 24 ounces of M&M’s per industrial injury.
- “Your honor, under Braewood v. WCAB (Bolton), Defendants must authorize the blue M&M’s in order to treat the underlying industrial condition.”
- The Governor has added a new ballot measure that would replace the California MPN system with a new M&M based system.
I think the last one is my favorite. :)
- Photo courtesy of Daneen_vol [↩]
- Via Slashdot [↩]
- You remember the tan ones, don’t you? [↩]
Medical Provider Network Website List
One has to wonder which would have given Kafka a bigger headache – MPN’s or voice mail message systems. 1 2 Finding a medical provider within an MPN is no walk in the park. 3
I get frustrated when I need to find a medical provider within an MPN. If I’m very lucky, I get lost in a maze of badly laid out pages or meaningless search screens. If I’m not so lucky the MPN website has changed, moved, or no longer exists.
Anyhow, I wanted to extend a “thank you” to all the users of this website who help me maintain my Medical Provider Network website page. It seems like just about every week some kind person sends me a new MPN website link or updated MPN password. 4
- I think I dislike voice mail message systems more… [↩]
- Photo courtesy of marcelgermain [↩]
- Heck, I’m a defense attorney and I’m not crazy about Medical Provider Networks. [↩]
- Once an insurance company sent me their updated MPN page! [↩]
Ogilvie Calculations Made Dead Simple
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:
- Earnings Loss56
- = (PIESSE – PIEA) / PIESSE
- = ($1.00 – $0.00) / $1.00
- = $1.00 / $1.00
- = 1
- = 100%
- Individualized Proportional Earnings Loss
- = (WPI / Earnings Loss) / 100
- = (WPI / 100% )/100
- = (WPI / 1) / 100
- = WPI / 100
- Thus, for any WPI less than 45 and a total loss of earnings, the Individualized Earnings Loss will always be less than 0.450 in Table A.
- 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 / 100) ) )
- = WPI * (1 + (.181 * 100 / WPI ) )
- = WPI * (1 + (18.1/ WPI ) )
- = WPI * ( (WPI/WPI) + (18.1/ WPI ) )
- = WPI * (WPI + 18.1/ WPI )
- = WPI * (WPI + 18.1/ WPI )
- = WPI + 18.1
- Conclusion
- If you have an Applicant with a 100% post injury earnings loss and a WPI of 44 or less, you should rebut the FEC and arrive at an adjusted WPI that is equal to the original WPI plus 18.1.
Therefore, I propose a new Ogilvie formula that will be easy for anyone to remember:
- Step 1: If the injured worker has a 100% earnings loss and a WPI of 44 or less, add 18.1 to the WPI and round down.
- Step 2: If the injured worker has less than 100% earnings loss or a WPI of 45 or higher, go to Step 3.
- Step 3: For heaven’s sake, just make your life easier and use the calculators here at PDRater.com.
What do you think? Leave a comment or drop me a line.
- Sorry Jeff, Mark, Mark, and Ray! [↩]
- Thank you “S”! Unfortunately, he did not want to be named. [↩]
- Man, I *wish* I could take credit for this observation. [↩]
- Not multiplied by 18, but an addition of 18. [↩]
- PIESSE = Post Injury Earnings of Similarly Situated Employees [↩]
- PIEA = Post Injury Earnings of Applicant [↩]
A new prescription for pain
Researchers at the Keele University in England recently discovered that people report less pain when swearing. (Via Slashdot) And…cue the workers’ compensation jokes:
- Depositions:
- Q: Mr. Smith, what else helps alleviate your pain?
- A: [DELETED]
- Q: Counsel, maybe we should go off the record for a moment…
- Court reporters:
- “I need to get the spellings for a few words…”
- Interpreters:
- “Uh, could you translate that again?”
- Trials:
- Judge: Madam reporter, would you please read that back…
- Appeals:
- WHEREFORE the above and foregoing, Defendants respectfully pray that this Board grant reconsideration and find Applicant refused reasonable prescribed medical treatment and should therefore be denied temporary disability benefits.
- Legal research:
- “$ This search is outside your research plan.”
- Medical treatment:
- “Actually, a telephone conference with my doctor should be sufficient.”
- “Where do I look this up under the ACOEM guidelines?”
- “Just how the crap am I supposed to write the damn utilization review appeal for this one???”
- “I’m sorry, doctor, I must have read this prescription wrong…”
- “Why is this doctor prescribing a speech therapist for a back injury?”
- “By the way, your nurse case manager is Andrew Dice Clay.”
- “Although my level of disability was lowered after SB 899, I sure find that talking about it helps.”
- “In other news, researchers in Nevada have found that gambling, hookers, and dry weather also reduce pain.”
I’m not really a workers’ compensation attorney, I’m really just a failed comic.
(Photo courtesy of Mike Licht)
Guest Article from Vocational Expert Emily Tincher
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.
- Photo courtesy of Stephen Cummings [↩]
New Ogilvie Calculator Feature!
What’s that? You haven’t memorized ALL of the FEC ranks to go with each of the 2005 Permanent Disability Rating Schedule body parts? 1
Why didn’t you say so? (Actually, someone did ask for an easy way to look up the FEC ranks back on April 1).
I’ve been working on an easy way to allow a user to look up and quickly insert the FEC rank for the affected body part. I finally got around to building it a few days ago and launched it this morning. Please give it a shot and let me know what you think.
Here’s all you need to do to perform your very own Ogilvie calculation:
- Go to the permanent disability calculator page. (If you haven’t already signed up for free, this is a good time.)
- Click “Ogilvie” Diminished Future Earning Capacity Calculator “
- Type in the FEC rank OR click “FEC Rank (1-8)” and click on the injured body part. It will look up the FEC rank and insert it for you.
- Type in the “Whole Person Impairment”
- Type in the “Post Injury Earnings of Applicant”
- Type in the “Post Injury Earnings of Similarly Situated Employees” OR click the link to obtain some information from the EDD Labor Market Information Division (LMID) and US Department of Labor, Bureau of Labor Statistics (BLS).
If you can think of a way for me to make this calculator even easier, please let me know. 2
- You’ve only had four years, right? [↩]
- Photo courtesy of Vicki’s Pics [↩]
How to Save Your Law Practice Money: Part I
Cost: $0.00
Savings: $150/computer
Here’s an easy way to save your law practice several hundred dollars in the next few months. The next time you have to purchase a new computer do not buy a copy of MicroSoft Office, MicroSoft Word, or WordPerfect. Even basic versions of these programs can run several hundred dollars per computer.1 You don’t have to purchase these programs!
Try OpenOffice instead! I have been using OpenOffice on my home and work computers for the last three years and have been extremely happy with it. I have given copies of this program to family, friends, and colleagues who are also all very happy with it. I’ve used it for simple correspondence, legal pleadings, spreadsheets, and presentations.
Here are a few “real world” benefits:
OpenOffice is totally 100% free open source software
Free as in free. Give it to your friends. Install it at home and on your kids’ computers. Don’t worry about software piracy. Its totally, completely, free.
OpenOffice has better document recovery
Its important to know that OpenOffice is much more stable than anything MicroSoft or WordPerfect has to offer. It is extremely rare that OpenOffice crashes on me. If you’re using MicroSoft Word and you haven’t saved your document at least once, a single crash will completely erase all of your progress. The very few times that OpenOffice has crashed on me I have gotten all of my data back – even when I haven’t saved the file once.
OpenOffice has everything you need
OpenOffice has all the features of MicroSoft Word, Excel, PowerPoint, and WordPerfect. You can also use the OpenOffice suite of software to open, edit, and save to MicroSoft Word and WordPerfect formats. It won’t automatically open the MicroSoft Office 2007 formats yet, but you can find plugins and software to do this for you (also for free). OpenOffice has spell check, grammar check, autocorrect, macros, and templates (even legal pleading templates!).
OpenOffice can do more than its competitors
OpenOffice can save as, open, and even edit a PDF. Editing a PDF requires a plugin, but it is very easy to install (and also free!). Just being able to print to a PDF is going to make your documents easier to share with others and, hopefully, one day easier to share with EAMS too.23
If you’re not convinced to make the leap with your next computer purchase, then download OpenOffice now and give it a shot on your current computer. Here’s their website link:
Download OpenOffice.org – free word processing, spreadsheet, and presentation software