As I mentioned a few days ago, I was recently at the State Bar Convention in San Diego. While at the Steve Jimenez Memorial Special Recognition Awards Ceremony, I bumped into one of the Workers’ Compensation Appeals Board commissioners.1
It was one of those days where I’m kicking myself for not lugging around my copy of Ogilvie II.2
I got to tell this commissioner, “I’m a big fan of your work.”3
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.
I had the good fortune to attend the Steve Jimenez Memorial Special Recognition Awards on September 11, 2009. Congratulations to:
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
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
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.
