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? ;) ))
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.
I have no intention of manufacturing FEC Ranks 9 through 20 for the following reasons:
Maintaining Standards. The entire point of a rating schedule is to allow a standardized method for calculating disability and expressing those disability calculations. If I invented my own FEC Rank system beyond the scheduled 1-8 Ranks, I would essentially be creating my own rating calculation system. I’ve gone to considerable lengths to ensure that the rating strings produced by these permanent disability calculators are as standardized, recognizeable, and universal as possible.
FEC Ranks are Irrelevant. The FEC Rank system is a simplified method of applying DFEC adjustment factors. When you use the FEC Rank of a particular body part to adjust the standard using the charts on pages 2-6 and 2-7 of the 2005 PDRS (permanent disability rating schedule), what you’re really doing is essentially multiplying your standard disability against the FEC adjustment factor associated with the particular FEC Rank for the body part in question. An FEC Rank is only useful for telling you the appropriate FEC adjustment factor to apply to the standard disability. Thus, FEC Ranks are irrelevant and FEC adjustment factors are all important.
Arbitrary FEC Ranks. FEC Rank 1 has an FEC adjustment factor of “1.100”. However, using the OgilvieDFEC rebuttal formula, it is possible to end up with very low FEC adjustment factors. In extreme circumstances it would be possible to have a negative FEC adjustment factor. The only way to resolve this would be to have several possible negative FEC Ranks. Besides being somewhat silly, worrying about additional FEC Ranks ((Both higher and lower than the normal 8)) misses the point. If you’re using the OgilvieDFEC rebuttal formula properly, the result will be a new FEC adjustment factor. If you already have the FEC adjustment factor, you have no need for the FEC Rank!
When I had discussed the impact of Ogilvie earlier, I had pointed out that in some cases the resulting formula will dictate that you use a different FEC Rank than the one indicated by the affected body part. In other cases you will need to use an entirely new FEC adjustment factor. In order to keep the 2005 disability calculator current I will eventually have to create a way for the user to override a body part’s standard FEC Rank and specify a new FEC Rank or their own FEC adjustment factor.
I’m not in any particular rush to develop this feature since Ogilvie seems to require three years of post-injury earnings. I doubt we’re going to see litigation begin in earnest over Ogilvie issues for another 18 to 24 months.
A few weeks ago I posted about the Multiple Disabilities Table for combining disabilities with injuries prior to 2005.
For injuries after 2005 we must turn to the 2005 Permanent Disability Rating Schedule. When combining disabilities for injuries after 2005 there are several possible alternatives. You can:
Reverse engineer the combined values formula from the three pages of 4 point font in the Combined Values Chart. ((Honestly, I don’t recommend this. It wasn’t fun.))
