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? ;) ))
A little while ago William S. Morris, an Applicant’s attorney, told me that the Ogilvie adjustment calculation could be further simplified. ((Photo courtesy of Dahveed76)) He suggested the following ((I’m paraphrasing here)) :
Earnings Loss ((PIESSE = Post Injury Earnings of Similarly Situated Employees)) ((PIEA = Post Injury Earnings of Applicant))
If the injured workers’ individualized proportional earnings loss is outside all of the FEC ranks, you may calculate the Ogilvie adjustment by adding (18.1*Earnings Loss) to the WPI.
Get ready to stop paying people to do Ogilvie calculations, recycle your Gearheart/Gerlach handouts, and delete your Frost Excel spreadsheet. ((Sorry Jeff, Mark, Mark, and Ray!)) We’re about to go all “Beautiful Mind.”
Yesterday while at the Oakland WCAB an Applicant’s attorney mentioned he noticed an interesting trend in the Ogilvie formula. ((Thank you “S”! Unfortunately, he did not want to be named.)) ((Man, I *wish* I could take credit for this observation.)) He said that whenever he does an Ogilvie calculation for someone with a 100% earnings loss and a modest WPI, the WPI is always increased by 18. ((Not multiplied by 18, but an addition of 18.))
I ran a number of test calculations on this theory and it appeared to be right. My calculations show that up to a WPI of 44 the increase appears to always be 18.1, but the last “0.1” always gets rounded down. However, appearing to be right just isn’t good enough for me. And, because I am just truly that nerd, here’s the fully mathematical proof:
Let’s break down the calculations at the heart of Ogilvie:
Earnings Loss ((PIESSE = Post Injury Earnings of Similarly Situated Employees)) ((PIEA = Post Injury Earnings of Applicant))
= (PIESSE – PIEA) / PIESSE
= ($1.00 – $0.00) / $1.00
= $1.00 / $1.00
= 1
= 100%
Individualized Proportional Earnings Loss
= (WPI / Earnings Loss) / 100
= (WPI / 100% )/100
= (WPI / 1) / 100
= WPI / 100
Thus, for any WPI less than 45 and a total loss of earnings, the Individualized Earnings Loss will always be less than 0.450 in Table A.
If you have an Applicant with a 100% post injury earnings loss and a WPI of 44 or less, you should rebut the FEC and arrive at an adjusted WPI that is equal to the original WPI plus 18.1.
Therefore, I propose a new Ogilvie formula that will be easy for anyone to remember:
Step 1: If the injured worker has a 100% earnings loss and a WPI of 44 or less, add 18.1 to the WPI and round down.
Step 2: If the injured worker has less than 100% earnings loss or a WPI of 45 or higher, go to Step 3.
Step 3: For heaven’s sake, just make your life easier and use the calculators here at PDRater.com.
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))
