Category: Workers Compensation Resources

By Posted on Posted in 2005 PDRS, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources Tagged with , , , , , , , , , , , , ,
Sep
16
2009
Oh, if only rehab was this easy...
Oh, if only rehab was this easy…

Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions.  The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.

As far as I can tell, the WCAB1 in Ogilvie II basically flip flopped on the role of vocational experts.  Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.2

The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.

This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.

  1. Well, eight of the commissioners anyhow. [↩]
  2. I received more than one letter demanding agreement to a vocational counselor under Ogilvie I. [↩]

By Posted on Posted in Workers Compensation Resources Tagged with , , , ,
Sep
11
2009

I had the good fortune to attend the Steve Jimenez Memorial Special Recognition Awards on September 11, 2009.  Congratulations to:

  • Judge Linda Morgan, Judge of the Year
  • Michael Laughlin, Lifetime Achievement Award
  • J. Bruce Sutherland, Applicant Attorney of the Year
  • Robert Succa, Defense Attorney of the Year

By Posted on Posted in 2005 PDRS, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources Tagged with , , , , , , , , , , ,
Sep
9
2009
Dont cry - you had a good run
Don't cry - you had a good run

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

  1. Photo courtesy of Lawrence Whittmore [↩]
  2. February 3, 2009 is the day Ogilvie I came out. [↩]

By Posted on Posted in AJAX, Author, Calculators, Cell Phones, CSS, Javascript, MySQL, PDRater, PHP, Technobabble, Website Updates, Workers Compensation Resources Tagged with , , , , , , , , , , , ,
Sep
6
2009
Easy-to-make iPhone
Easy-to-make iPhone

A company once told me someone had offered to build permanent disability calculators for their website in three months for $7,500.  One said six months and $20,000.  Recently, another suggested it would take them a year and $40,000.  My response is usually some variation on “You’ve got to take that deal.  You’re wasting your time talking to me.”

It’s no big secret that building a great product takes a lot of work.  The important thing to remember is that just because something is easy-to-use, that doesn’t mean its easy-to-make. 1

Real iPhone
Difficult-to-make iPhone

Let’s take the iPhone for example.  Everyone will concede its an easy phone to use.  However, it was released more than two years ago on 6/29/2007. 2  In that time the other players – BlackBerry, LG, Nokia, and Palm have all been trying to catch up.  If this easy-to-use phone were easy-to-build everyone would have their own version.

Look, there’s no special magic to building a website like this.  Really, anyone can do it.  All you have to do is learn the calculations inside-and-out, deconstruct the math involved in the various calculations, learn some client and server side programming languages, learn a content management system, make it all work together, keep current on changes in the law, start all over again each time the law changes, and earn the respect of the workers’ compensation community.  Once done, you’ll have your very own workers’ compensation calculator website!

To return to the lesson of the iPhone, building a touch screen phone that can play music and surf the web is totally doable.  Doing it right is another matter entirely.

  1. Visit the link for a PDF of a cut-and-fold iPhone.  Thanks Gizmodo! [↩]
  2. Wikipedia link. [↩]

By Posted on Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Case Law, Ogilvie, Permanent Partial Disability, Workers Compensation Resources Tagged with , , , , , , , , , , , , , , , , ,
Sep
4
2009
Ogilvie and Almaraz/Guzman - lets cut to the chase
Ogilvie and Almaraz/Guzman - let's cut to the chase

First off, if you haven’t already downloaded Ogilvie II and Almaraz/Guzman II, do so now!

As I mentioned previously, each of these cases is about 50 pages long, so there is clearly no substitute for reading them for yourself.  However, here’s Ogilvie II and Almaraz/Guzman II in five sentences:1

  • Ogilvie v. WCAB II:
    • The WCAB ruled the original Ogilvie (I) formula is still valid.
    • The WCAB appears to have created a right to reopen a case for “individualized proportional earnings loss.”
    • Vocational testimony is not an appropriate way to dispute the DFEC portion of the 2005 Permanent Disability Rating Schedule.
    • (Bonus Dissent Summary: The lone dissent by Caplane says that vocational testimony should be considered proper rebuttal to an entire permanent disability rating.)
  • Almaraz/Guzman II:
    • The WCAB ruled that a doctor must issue reports within the “four corners” of the AMA Guides 5th Edition to comply with Labor Code Section 4660(c). 2
    • However, either party may obtain rebuttal evidence in the form of supplemental reports and depositions regarding the use of any other chapter, method, or table within the AMA Guides.
    • (Bonus Dissent Summary:  The dissenting opinion from Brass, Caplane, and Moresi says they would affirm their decision in Almaraz/Guzman I.)

What do these cases mean for the practitioner?

  • The WCAB has created a new right to reopen for a higher than expected “individualized proportional earnings loss.”
  • The Ogilvie Mathematical Proof of 18 Point Add-Ons still stands.
  • I see even more doctor depositions in my future.
  • My phone is going to be ringing off the hook tomorrow.
  1. Photo courtesy of Scallop Holden [↩]
  2. Here, the phrase “four corners of the AMA Guides” just means the parties are restricted to the actual text of the AMA Guides and cannot use analogies and evidence from outside the AMA Guides. [↩]