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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.

How has Almaraz/Guzman changed workers’ compensation?

By Jay Shergill Posted on March 23, 2009 Posted in 2005 PDRS, Almaraz / Guzman, AMA Guides, Workers Compensation Resources No Comments Tagged with 2005, almaraz, almarazguzman, almarez, almarez-guzman, ama 5th, Ama Guide, Ama Guidelines, analogize, Attorneys, Discovery, Doctors, En Banc, Evaluator, guzaman, guzman, impairment ratings, Pdrs, substantial medical evidence, Wcab

Clearly, Almaraz/Guzman has been a boon to the U.S. Postal Service. I’ve been receiving Almaraz/Guzman letters from Applicant attorneys on my files ever since the en banc decision came out. These letters typically fall into one of three categories:

Increased demands for settlement
Demands for additional discovery per Almaraz/Guzman
Letters to the PQME/AME requesting their opinions on impairment outside the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition

I’ve also heard of some doctors completely abandoning the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition, in favor of just analogizing impairment. This is not what was intended by the en banc panel in WCAB in Almaraz/Guzman.

Here’s what Almaraz/Guzman means for workers’ compensation practitioners:

It doesn’t mean you ignore the AMA Guidelines 5th Edition
It doesn’t mean you ignore the 2005 Permanent Disability Rating Schedule
You don’t apply the 1997 Permanent Disability Rating Schedule
The evaluator may analogize impairments not addressed by the AMA Guides
Before a doctor may analogize impairments, they must first assign impairment under the AMA Guides

So, remember:

Whether you agree with the AMA Guides or the 2005 PDRS they’re still the law of the land and must be addressed.
Whether you agree with Almaraz/Guzman, it’s still good law and must be addressed.
Almaraz/Guzman does not absolve a doctor from the responsibility to generate a medical report which addresses the AMA Guides and constitutes substantial medical evidence.

Combined Values Chart

By Jay Shergill Posted on February 16, 2009 Posted in 2005 PDRS, AMA Guides, Calculators, Combined Values Chart, Downloads, Free, PDRater, Workers Compensation Resources No Comments Tagged with 2005 schedule, ama, Ama Guidelines, Calculator, Font Chart, guides, Multiple Disabilities, Pdrs, Permanent Disability, Point Font, Reverse Engineer

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:

Open up your copy of the AMA Guidelines to the Evaluation of Permanent Impairment, Fifth Edition to pages 604 through 606.
Open up your copy of the 2005 Permanent Disability Rating Schedule to pages 8-1 through 8-4. ((In case you’re wondering, the chart on the right is a super-condensed version of the Combined Values Chart on pages 8-2 through 8-4.))
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.))
OR, my personal favorite, take 30 seconds to sign up for free and use the combined values chart calculator whenever you want!

Ogilvie and Almaraz, en banc

By Jay Shergill Posted on February 5, 2009 Posted in Calculators, Case Law, Downloads, Free, PDRater, Technobabble, Website Updates, Workers Compensation Resources No Comments Tagged with almaraz, almarez, City And County Of San Francisco, Compensation Insurance Fund, Crazy Stuff, En Banc, Enviroserve, guzman, Keenan, Kesselring, Majority Opinion, Milpitas Unified School District, new cases, Pdrs, rebut 2005, rebut dfec, rebut pdrs, Rebuttal, Sfo, Sjo, State Compensation Insurance, State Compensation Insurance Fund, Wanda, Wcab, wcab en banc

Whats the WCAB doing NOW??? — What's the WCAB doing NOW???

UPDATE 9/3/2009: Download the new en banc Ogilvie II and Almaraz/Guzman II decisions here!

Need a FREE sample Ogilvie analysis brief complete with citations?

Some crazy stuff has happened in the last two days. ((Photo courtesy of Kyle Kesselring)) Two big en banc decisions were just handed down from the WCAB. Here they are, hot off the presses and ready for downloading:

Wanda Ogilvie v. City and County of San Francisco, ADJ1177048, SFO 0487779, (en banc) (2/3/2009)
Mario Almaraz v. Environmental Recovery Services (a.k.a. ENVIROSERVE) and State Compensation Insurance Fund, ADJ1078163, BAK 0145426 (en banc) (2/3/2009) and Joyce Guzman v. Milpitas Unified School District and Keenan & Associates, ADJ3341185, SJO 0254688 (en banc) (2/3/2009)

Of the two cases, I enjoyed Ogilvie v. City and County of San Francisco much more. This case describes to what extent the 2005 Permanent Disability Rating Schedule may be rebutted ((Basically just the DFEC portion.)) and how one might go about doing this.

Pages 22 through 32 are basically nothing but math. ((Yay!)) These pages detail the information and methodology necessary to rebut the DFEC portion of the 2005 Schedule.

Last night I wrote a prototype calculator which will allow you to determine whether you may or may not be able to rebut the DFEC portion of the 2005 Permanent Disability Rating Schedule. This calculator would only perform the DFEC rebuttal calculations suggested in the majority opinion, since this is now the law of the land. My plan is to test it this weekend and launch it Monday.

However, if anyone is interested in helping me test it, I would appreciate the help. Just drop me a line and I’ll give you the link as soon as its ready.

In the meantime, if you want to crunch the numbers yourself (or follow along with the WCAB in Ogilvie), you will probably find Table A and Table B page 1-7 of the 2005 PDRS to be very helpful.

FYI, there are a lot of “footnotes” in Ogilvie that reference various online documents or websites. I’ve downloaded a copy or provided a screenshot of each of these pages for your reference:

Multiple Disabilities Table Calculator

By Jay Shergill Posted on January 14, 2009 Posted in 1997 PDRS, Calculators, Free, Multiple Disabilities Table, PDRater, Workers Compensation Resources No Comments Tagged with Compensation Calculator, disability calculator, Increments, Multiple Disabilities, new year, Pdrs, Table Calculator

Right after “workers’ compensation calculator” and “permanent disability calculator,” the top search term for people coming to this website is “multiple disabilities table.”

If you want to combine multiple disabilities for injuries before 2005, ((After 2005, you may need to use the Combined Values Chart from the 2005 PDRS.)) you can:

Use the six step formula in the 1997 PDRS on page 7-12.
Use the two page chart in the 1997 PDRS on pages 7-15 to 7-16 ((FYI: The multiple disabilities chart in the rating schedules gives you disability increments of 5% points.)) ((The chart on the right is from the 1988 PDRS))
Take 30 seconds to register for this website for free and use the multiple disabilities calculators whenever you want!

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