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.
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: ((Photo courtesy of Scallop Holden))
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). ((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.))
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.”
PDRater workers' compensation calculators - so easy your cat can use them!
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? ((You’ve only had four years, right?))
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. ((Photo courtesy of Vicki’s Pics))
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.” ((Hence, the “The Thinker” reference above…))
Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
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.
