Tag: rebut 2005

Home › Posts tagged rebut 2005
Nov
12
2009
2005 PDRS, Articles, DFEC Rebuttal, Ogilvie, Permanent Disability Rating Schedule, Wage Loss, Workers Compensation Resources

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Building the case for a DFEC rebuttal
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.. 1  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.”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?3
  • Vocational testimony/evidence regarding earnings?
  • Proof of attempts to seek employment/motivation?
  • Something else?

Share your insight with an e-mail or comment.

  1. Photo courtesy of eliaspunch [↩]
  2. Ogilvie II, p1-2. [↩]
  3. Perhaps just a print-out from PDRater?  ;) [↩]
Sep
16
2009
2005 PDRS, Case Law, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources

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Oh, if only rehab was this easy...
Oh, if only rehab was this easy…

Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions.  The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.

As far as I can tell, the WCAB1 in Ogilvie II basically flip flopped on the role of vocational experts.  Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.2

The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.

This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.

  1. Well, eight of the commissioners anyhow. [↩]
  2. I received more than one letter demanding agreement to a vocational counselor under Ogilvie I. [↩]
Apr
6
2009
1997 PDRS, 2005 PDRS, Almaraz / Guzman, AMA Guides, DFEC Rebuttal, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Workers Compensation Resources

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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.1

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?

    1. 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.
    2. 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
    3. Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
      1. Photo courtesy of radiospike photography [↩]
      2. Hence, the “The Thinker” reference above… [↩]
      Apr
      1
      2009
      2005 PDRS, Calculators, Ogilvie, PDRater, Permanent Partial Disability, Technobabble, Website Updates, Workers Compensation Resources

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      Thank you for the feedback!
      Thank you for the feedback!

      I was recently sent feedback about the Ogilvie DFEC rebuttal calculator on this website. 1  Here’s how I’ve incorporated that feedback:

      1. 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.
      2. Email. You can now e-mail your calculations to yourself.
      3. 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:

      1. 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.
      2. Rating using the Ogilvie DFEC adjusted whole person impairment.  This one will prove to be a difficult one to write in an intuitive fashion.

      How would you change these calculators?  What else would you like to see?  What do you hate about them?  Shoot me an e-mail or leave a comment!

      1. Photo courtesy of biketrouble [↩]
      Mar
      28
      2009
      1997 PDRS, 2005 PDRS, Almaraz / Guzman, Average Weekly Wage, Business, Calculators, COLA, Combined Values Chart, EAMS, Free, Life Pension, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Permanent Total Disability, PHP, SAWW, Subscription Features, Technobabble, Temporary Partial Disability, Temporary Total Disability, Wage Loss, Website Updates, Wordpress, Workers Compensation Resources

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      Getting an upgrade!
      Getting an upgrade!

      Late last week a user asked for a new feature.1  He wanted to be able to perform the Ogilvie DFEC rebuttal calculation and have the results e-mailed to him.2 Well, I built it!3

      To e-mail yourself a calculation, perform the calculation as normal.  When the website returns your calculation, it will say “E-mail Me!”  Just click that button and it will send an e-mail to the address you used to register for this website.

      However, here’s the cool part:  I’ve installed this new e-mail system into every calculator! 4 No more having to copy and paste!  Just click one button and your calculation will show up in your inbox!5

      Although I intend this to be a paid-subscription-only feature, I am going to leave it open for all users while I get some feedback.  So, what do you think?  Please leave a comment or shoot me an e-mail!

      1. Thanks Dennis! [↩]
      2. Photo courtesy of Vernhart [↩]
      3. Why, what did you do with your Saturday morning? [↩]
      4. I haven’t installed it in some of the EAMS lookup functions [↩]
      5. If you filled in the boxes for Applicant, WCAB #, and File #, it will include this information in your e-mail as well.  This is only for your convenience and not a requirement. [↩]
      Feb
      19
      2009
      2005 PDRS, Calculators, Case Law, Downloads, Free, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Technobabble, Website Updates, Workers Compensation Resources

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      Workers Compensation Calculator
      Workers' Compensation Calculator

      I had an interesting e-mail exchange with a friend (and fellow workers’ compensation professional) the other day.1

      We were discussing the impacts of Ogilvie on 2005 schedule ratings.  He had asked me whether I intended to update the 2005 permanent disability rating calculator to include FEC Ranks after the scheduled 8.  I believe he had suggested FEC Ranks 9 through 20.

      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 Ogilvie DFEC 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 Ranks2 misses the point.  If you’re using the Ogilvie DFEC 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.

      1. Photo courtesy of Street Fly JZ [↩]
      2. Both higher and lower than the normal 8 [↩]
      Feb
      11
      2009
      2005 PDRS, AMA Guides, Calculators, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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      So Many Calclators, So Little Time
      So Many Calclators, So Little Time

      After some additional testing and feedback, I have launched the Ogilvie Calculator aka DFEC Calculator aka Diminished Future Earning Capacity Calculator.1

      To all of my friendly beta-testers:  Thank you!

      So, what are you waiting for?  Signing up for this website is totally free and takes 30 seconds.  Log in, give it a whirl and let me know what you think.

      1. Photo courtesy of teclasorg. [↩]
      Feb
      10
      2009
      2005 PDRS, AMA Guides, Calculators, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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      A modern hacker #1
      A modern hacker #1

      I launched the Ogilvie DFEC Rebuttal Calculator on Saturday morning to a select group of beta-testers. 1 When I upgraded a person’s access to the website they had no problem seeing the workers’ compensation calculator.

      Unfortunately, not one of them was able to actually use the thing.  Last night my wife suggests the problem might be, “maybe they are using a different version or its not refreshed or something”?

      And you know what?  She was right.  My wife, the hacker.2

      I’ve written several protections into these calculators to insulate my users from having to deal with problems or bugs from newly installed code.  I would much rather a user sees nothing than get a wrong answer.  And nothing is exactly what my users saw.  I had remembered to allow my beta testers to see the Ogilvie DFEC Rebuttal Calculator – but forgot to give them access to calculator.

      So, the beta-test period will continue for another day or two while I await feedback from my users.

      If you’d like to see what the Ogilvie DFEC Rebuttal Calculator looks like or want to try to use it, just sign up for free and shoot me an e-mail asking for access.

      1. By “select group” I mean anyone who asked me if they could help. [↩]
      2. Photo courtesy of gutter. [↩]
      Feb
      9
      2009
      2005 PDRS, AMA Guides, Calculators, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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      How to build a calculator: Its like smashing a calculator - only in reverse
      How to build a calculator: It's like smashing a calculator - only in reverse

      I’m going to delay the launch of the Ogilvie DFEC rebuttal calculator for a day or two. 1  I believe it works just fine, but I would like to test it a little more.  This said, I will grant anyone who is interested access to this calculator.

      Why the delay?  Well…

      The interesting thing about taking apart a set of calculations is that you find all sorts of “hidden steps” to the calculation.  The majority in Ogilvie does a respectible job of going through the steps of this new formula and even gives several examples.

      When performing most calculations one will need to round numbers at some point.  However, rounding almost invariably takes place at the very end.  In the case of the Ogilvie calculations, it appears that the WCAB rounds various figures throughout the calculation.

      Even though the DFEC rebuttal calculator was giving correct answers, the fourth or fifth decimal places on some intermediary figures occasionally did not coming out right.  It took me a little while to track down all the spots where the WCAB was implicitly rounding their figures (and to what decimal place!).

      I am fairly confident the calculator will work without a hitch, but I’m going to test it a little more before I make it available to the public.  If you’re interested in testing this Ogilvie DFEC rebuttal calculator, please drop me a line and let me know.

      If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  Seriously, free as in free!

      1. Photo courtesy of mhuang [↩]
      Feb
      7
      2009
      2005 PDRS, AMA Guides, Calculators, Downloads, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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      Professor, tell me more of this DFEC rebuttal calculator...
      Professor, tell me more of this DFEC rebuttal calculator...

      Earlier today I installed an Ogilvie v. City and County of SF DFEC Rebuttal calculator into the free workers’ compensation calculators page on this website. 123 For the moment it is only available to people who have signed up for this website and asked to be a beta tester.  If all goes well, I’ll flip a switch and make it available to the public on Monday morning.

      At the moment it requires four pieces of information:

      1. FEC Rank (re: body part in question)
      2. Standard disability (re: body part in question)
      3. Post-injury earnings for Applicant
      4. Post-injury earnings for employees similarly situated to Applicant

      Once you add in that information, click “Calculate” and it should crunch through the formula and give you a response.  The WCAB in Ogilvie suggested several possible outcomes to this formula:

      • The “Individualized Loss Ratio” for the injured worker is the same or within the range for the current FEC Rank for the affected body part.  In this circumstance, the 2005 DFEC has not been rebutted.
      • The “Individualized Loss Ratio” for the injured worker is within the range of one of the other seven FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.
      • The “Individualized Loss Ratio” for the injured worker is outside the range of all eight FEC Ranks.  In this circumstance, you could end up with a new FEC Adjustment Factor much higher or lower than any FEC Adjustment Factor associated with the eight FEC Ranks.  Here, the DFEC portion of the 2005 Permanent Disability Rating Schedule might be rebutted.

      Obviously, there are innumerable factors that go into considerations of whether a Judge (or the WCAB) would find the DFEC portion of the 2005 Permanent Disability Rating Schedule to be rebutted.  This calculation and the information relied upon in performing this calculation cannot be taken as a guarranteed method of rebutting the DFEC portion of the 2005 Permanent Disability Rating Schedule.

      If you’re not a registered user for this website, its free to sign up and free to use all the workers’ compensation calculators.  That’s right: free as in free.

      1. Photo courtesy of Draggin [↩]
      2. I had this EXACT same calculator as a kid! [↩]
      3. Why, how did you spend your Friday night? [↩]