Permanent Disability Rating Schedule – Page 2 – PDRater

Ogilvie: Building the Case Part I

By Jay Shergill Posted on November 12, 2009 Posted in 2005 PDRS, Articles, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Wage Loss, Workers Compensation Resources No Comments Tagged with 2005 schedule, ogilvie 2, ogilvie adjustment, ogilvie calculation, ogilvie calculator, ogilvie exhibit, ogilvie formula, ogilvie ii, ogilvie proof, ogilvie rebuttal, rebut 2005, rebut dfec, rebut pdrs, Rebuttal

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.

The Role of Rehab Experts after Ogilvie II

By Jay Shergill Posted on September 16, 2009 Posted in 2005 PDRS, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with En Banc, expert testimony, Expert Witnesses, Pd, rebut, rebut 2005, rebut dfec, rebut pdrs, Rebuttal, rehab, rehab expert, rehabilitation, rehabilitation expert testimony, Wcab

: 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 WCAB ((Well, eight of the commissioners anyhow.)) 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. (( I received more than one letter demanding agreement to a vocational counselor under Ogilvie I.))

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.

Is Ogilvie II worse for Defendants than Ogilvie I?

By Jay Shergill Posted on September 9, 2009 Posted in 2005 PDRS, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with Adjustment Factor, dfec, Disability, Earnings, new ogilvie, ogilvie 2, ogilvie ii, ogilvie page 32, ogilvie reopen, Page 32, Petition, petition to reopen

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. ((Photo courtesy of Lawrence Whittmore)) 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. ((February 3, 2009 is the day Ogilvie I came out.))

Ogilvie II, Almaraz/Guzman II – More En Banc Opinions!

By Jay Shergill Posted on September 3, 2009 Posted in Almaraz / Guzman, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Workers Compensation Resources No Comments Tagged with almaraz, almarez, Compensation Appeals Board, Decisions, En Banc, guzman, Wcab

Need a FREE sample Ogilvie analysis brief complete with citations?

The Workers’ Compensation Appeals Board is back with their en banc decisions on Ogilvie and Almaraz/Guzman after reconsideration. ((Photo courtesy of arturodonate)) Download the Ogilvie/Almaraz/Guzman decisions all in one place:

Each of these four is about 50 pages. Read them carefully, there will be a test later.

Ogilvie, Almaraz, & Guzman: Reconsideration Granted! Amicus Briefs Allowed!

By Jay Shergill Posted on April 6, 2009 Posted in 1997 PDRS, 2005 PDRS, Almaraz / Guzman, AMA Guides, DFEC Rebuttal, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources No Comments Tagged with aghazarian, almaraz, almarez, amicus, Amicus Brief, C Duncan, caplane, City And County Of San Francisco, commissioner, Compensation Appeals Board, Compensation Insurance Fund, Concurring Opinions, Crazy Stuff, Department Of Industrial Relations, En Banc, Enviroserve, guzman, Interested Party, Keenan, Kesselring, Majority Opinion, Milpitas Unified School District, new cases, order granting reconsideration, Pdrs, rebut 2005, rebut dfec, rebut pdrs, Rebuttal, recon, Sfo, Sjo, State Compensation Insurance, State Compensation Insurance Fund, Wanda, Wcab, wcab en banc

Need more time to think about Ogilvie, Almaraz, and Guzman? — Need more time to think about Ogilvie, Almaraz/Guzman?

Sometimes even the WCAB needs more time to think. ((Photo courtesy of radiospike photography))

On March 26, 2009, the director of the Department of Industrial Relations, John C. Duncan, issued a letter to the entire Workers’ Compensation Appeals Board asking them to vacate their own decisions and solicit argument and amicus briefs. Here’s a copy, courtesy of WCExec.com, the Letter from Director of DIR to WCAB re: Ogilvie and Almaraz/Guzman (3/26/2009).

On Monday April 6, 2009 the WCAB issued three Orders Granting Reconsideration and Order Allowing Amicus Briefs (en banc) in Ogilvie and Almaraz/Guzman. For your review:

What does the Order Granting Reconsideration of Ogilvie and Almaraz/Guzman mean for you?

Ogilvie and Almaraz/Guzman are still the law. Despite Commissioner Aghazarian’s two concurring opinions, the WCAB did not issue a stay of either Ogilvie or Almaraz/Guzman.
The WCAB has granted SCIF’s petition for reconsideration in Almaraz, granting reconsideration on their own motion in Guzman, and the parties’ petitions for reconsideration in Ogilvie. They have granted reconsideration on these cases to, “afford us a sufficient opporutnity to study the issues.” ((Hence, the “The Thinker” reference above…))
Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.

Category: Permanent Disability Rating Schedule