Need a rating fast? Need “old schedule” and “new schedule” ratings?
No problem. Just fill out the handy referral form and fax or e-mail us your permanent and stationary reports and one of our Certified Impairment Rating Specialist will quickly e-mail you the rating you need to move your case forward. 23
Or, rather, I would get it if I were important too. [↩]
A PDRater certified rating is a rating prepared by a Certified Impairment Rating Specialist using PDRater calculators, the most trusted and impartial workers compensation calculators in California. [↩]
If you did attend the seminar in Los Angeles, I promised you a copy of all of the cases cited during the presentation on Permanent Disability. Here’s the basic outline along with a download link for every case I cited:
Yes, yes, I know we’re supposed to have a new schedule per 8 CCR 9805, but the proposed draft 2009 PDRS was never approved.
Overall, the draft 2009 Permanent Disability Schedule doesn’t change much from the existing 2005 schedule. The biggest change is in the application of the FEC rank adjustment. Instead of increasing permanent disability between 10% and 40%, the proposed FEC rank system would increase permanent disability between 20% and 50%. Additionally, the proposal suggested juggling the various ranks among the body regions. If you’re curious about the exact proposed changes, the DWC Newsline gave a really great overview back on May 9, 2008.
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
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.
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
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
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.”
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. [↩]
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.
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
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:
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.”2
Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
I was recently sent feedback about the Ogilvie DFEC rebuttal calculator on this website. 1 Here’s how I’ve incorporated that feedback:
Inputs. The calculator results repeats the inputs with the results. This ensures that the answer provided gives you enough context when showing the calculation to the other side or when you go back to review your file.
Links. I’ve added a link to the various Employment Development Department and U.S. Dept of Labor, Bureau of Labor Statistics inside the calculator itself. It doesn’t automatically obtain the information, but hopefully you will find this helpful.
There are two other issues I’m thinking about:
An easy way to pull up the FEC rank of a particular body part. Its kind of a pain to look up the body part, find the FEC rank, and then enter that into the calculator. I’m thinking ways to simplify this process. This shouldn’t be too bad to write.
