Tag: wcab en banc

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Jun
12
2009
Case Law, PDRater, Vocational Rehabilitation, Website Updates, Workers Compensation Resources

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WCAB: Throwing babies out with the bathwater since 1965
The WCAB: Throwing babies out with the bathwater since 1965

For context, its best to see the prior post about the WCAB’s Weiner v. Ralph’s (en banc) decision.  There’s even a link to the Weiner v. Ralphs (en banc) decision for download – just so you can play along at home.

The question in the title of the post is really a question about the WCAB’s rationale – not their end legal justification behind Weiner.  I believe the Weiner case hints that the WCAB is going to go the other way and uphold their rulings in Almaraz/Guzman and Ogilvie.

However, I think the WCAB’s rationale for ending vocational rehabilitation was because of the potential for enormous retroactive vocational rehabilitation maintenance allowance awards at the temporary total disability rate outside the cap (VRTD).12

  1. Photo courtesy of Stephane Raymond [↩]
  2. You see, I’m suggesting that the bathwater is VRTD and the baby itself is vocational rehabilitation.  Kinda kills the metaphor, eh? [↩]
Jun
11
2009
Case Law, PDRater, Vocational Rehabilitation, Website Updates, Workers Compensation Resources

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Weiner v. Ralphs spells the end of rehab
Weiner v. Ralphs spells the end of rehab

The Workers’ Compensation Appeals Board recently solicited amicus briefs regarding the Weiner v. Ralphs case.  After review of the amicus briefs on the topic of the repeal of Labor Code Section 139.5 and vocational rehabilitation, the WCAB has just issued their en banc opinion.1

Download a copy of Weiner v. Ralphs (en banc) right here:

Obviously, you’ll need to read and interpret Weiner v. Ralph’s for yourself.  Here’s the Board’s own summary:

  1. The repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009
  2. A saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009
  3. The vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009
  4. Effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and
  5. Subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

What does Weiner v. Ralph’s mean to you?

  1. Vocational rehabilitation is gone unless there is a “vested” right by way order that became final prior to 1/1/2009.
  2. If you already have a final order for vocational rehabilitation, the WCAB can still hear a dispute.
  1. Photo courtesy of larryfishkorn [↩]
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. [↩]
      Mar
      26
      2009
      2005 PDRS, Calculators, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Technobabble, Workers Compensation Resources

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      Could THIS be the elusive Ogilvie formula?
      Could THIS be the elusive Ogilvie formula?

      So, here’s the deal:  I want to build the absolute most comprehensive suite of calculators and tools for workers’ compensation professionals. 1  I also want your help to making them better.

      In the last few days several people have sent me questions about the Ogilvie DFEC workers’ compensation calculator:2

      1. Is it possible to get an Ogilvie DFEC adjusted whole person impairment above 100%?
        • I believe it might be theoretically possible to achieve an adjusted whole person impairment above 100% using the Ogilvie DFEC formula.  I could easily include a small variation on the calculation that would prevent it from exceeding 100, but I have not done so because I wanted to replicate the the formulas set forth in Ogilvie as exactly as possible.
      2. Why can’t I use post-injury earnings of $0.00?  What if they have no earnings at all?
        • That’s an extremely valid point.  If you try to use a post-injury earnings of “zero”, it will cause division by “zero” which is not a mathematically legal operation.  Try post-injury earnings of $1.00 or $0.01.  Doing so will give you an answer VERY close to what you need. 3
      3. When do you round each calculation when performing the Ogilvie DFEC calculation?
        • The WCAB en banc in Ogilvie rounds to three decimal places at one step and to four decimal places at a second step.  The only way we know what they actually did is by extrapolating from the examples in the decision – they never actually state “round to four significant digits here, round to three significant digits there.”  I have rounded exactly as they did in their examples.
        • At the end of the day, there are two ways to perform the Ogilvie DFEC calculation:  the exact way the WCAB did it (sometimes four, sometimes three decimal places) and the way they probably intended to do it (four decimal places until the end).  I made the judgment call to use the formula as they performed it, warts and all.
        • Why did I choose to round as the WCAB did?  I think it is more defensible to calculate exactly as the Board did, rather than as I think the Board should have calculated.
      4. How do you put the Ogilvie DFEC adjusted whole person impairment into the rating calculator?
        • At this point, you can’t use a different FEC Rank or an Ogilvie DFEC adjustment factor in the 2005 PDRS rating calculator on this site.  In order to accomodate this, I would need to either rewrite the entire calculator or write a new calculator.  One other possibility is that I could modify the Ogilvie DFEC calculation to provide one extra line of information – where it “runs the FEC numbers backwards.”
        • Let’s take this example:  Suppose the body part FEC rank is 1 and whole person impairment is 10.  The normal FEC adjusted whole person impairment would be 11.  Let’s suppose after applying the Ogilvie DFEC formula it turns out you should have an FEC rank of 8 instead.  This would give you an Ogilvie DFEC adjusted whole person impariment of 14%.  I could write a modification of the current Ogilvie DFEC calculator to put 14% into the FEC Rank chart and look up what whole person impairment you would need with an FEC rank of 1 to arrive at 14%.  Would you find this a helpful interim fix?  Please let me know by sending me an e-mail.
      5. Jay, why in the world did the Ogilvie DFEC calculator reference “standard disability”?  Shouldn’t it say “whole person impairment”?
        1. You’re totally correct.  I’ve fixed this.  Mea culpa.

      Here’s my request for your help.  In order to make an Ogilvie calculation valid, you need to put in valid post-injury earnings of similarly situated employees.  The WCAB in Ogilvie suggests several possible sources:4

      What do you use for post-injury earnings of similarly situated employees?  If I had a better idea where people were looking it is possible that I might be able to automate the inclusion of this informaiton as well.  Please drop me a line and let me know.   If there is a general consensus, I’ll look into the possiblity of having this informaiton automatically imported from an external website.

      1. Why?  Some people have wacky hobbies.  Maybe you build hockey arenas out of toothpicks.  I build workers’ compensation calculators and give them away for free.  If it will put you at ease, I hope to make money from advertising in the future. [↩]
      2. Photo courtesy of nerissa’s ring [↩]
      3. I know it has a less than friendly error message about this. I’ll see what I can do about fixing that. [↩]
      4. I’ve copied the links directly from Ray Frost‘s Ogilvie spreadsheet/calculator.  Ray has been kind enough to allow me the use of his extensive work restrictions lists.  So, thanks Ray! [↩]
      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
      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? [↩]
      Feb
      6
      2009
      1997 PDRS, 2005 PDRS, AMA Guides, Calculators, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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      Need help with a workers compensation calculator?
      Need help with a workers' compensation calculator?

      I put out the call for help testing my Ogilvie DFEC rebuttal calculator and got a bite! 1 I wrote it two days ago and refined it a little bit last night.2

      If anyone else is interested in helping test this Ogilvie DFEC rebuttal calculator, please drop me a line and let me know.

      The ideal tester is someone who:

      1. Has read Ogilvie and understands how to do the Ogilvie DFEC rebuttal calculations
      2. Is willing to use the Ogilvie DFEC rebuttal calculator this weekend
      3. Is willing to e-mail me with feedback this weekend so I can launch it on Monday to the public

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

      You heard me, free as in free.

      1. Photo courtesy of Joy of the Mundane. [↩]
      2. Because I’m a total workers’ compensation nerd. [↩]