Tag: Wcab

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Jul
17
2009
2005 PDRS, Case Law, DFEC Rebuttal, Ogilvie, Workers Compensation Resources

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Ogilvie for Dummies
Ogilvie for Dummies

UPDATE: DOWNLOAD THE MATHEMATICAL PROOF AS A PDF!

Get ready to stop paying people to do Ogilvie calculations, recycle your Gearheart/Gerlach handouts, and delete your Frost Excel spreadsheet.1  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. 23 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. 4

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:

  1. Earnings Loss56
    1. = (PIESSE – PIEA) / PIESSE
    2. = ($1.00 – $0.00) / $1.00
    3. = $1.00 / $1.00
    4. = 1
    5. = 100%
  2. Individualized Proportional Earnings Loss
    1. = (WPI / Earnings Loss) / 100
    2. = (WPI / 100% )/100
    3. = (WPI / 1) / 100
    4. = WPI / 100
    5. 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.
  3. DFEC Adjustment Factor
    1. = ([1.81/a] * .1) + 1
    2. = ( (1.81 * .1)/a) + 1
    3. = (.181/a) + 1
    4. = 1 + (.181/a)
  4. Ogilvie DFEC Adjusted Rating
    1. = WPI * DFEC Adjustment Factor
    2. = WPI * (1 + (.181/a) )
    3. = WPI * (1 + (.181 / Individualized Proportional Earnings Loss) )
    4. = WPI * (1 + (.181 / (WPI / 100) ) )
    5. = WPI * (1 + (.181 * 100 / WPI ) )
    6. = WPI * (1 + (18.1/ WPI ) )
    7. = WPI * ( (WPI/WPI) + (18.1/ WPI ) )
    8. = WPI * (WPI + 18.1/ WPI )
    9. = WPI * (WPI + 18.1/ WPI )
    10. = WPI + 18.1
  5. Conclusion
    1. 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.

What do you think?  Leave a comment or drop me a line.

  1. Sorry Jeff, Mark, Mark, and Ray! [↩]
  2. Thank you “S”!  Unfortunately, he did not want to be named. [↩]
  3. Man, I *wish* I could take credit for this observation. [↩]
  4. Not multiplied by 18, but an addition of 18. [↩]
  5. PIESSE = Post Injury Earnings of Similarly Situated Employees [↩]
  6. PIEA = Post Injury Earnings of Applicant [↩]
Jun
30
2009
Author

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...and she was reading this!
...and she was reading this!

Yesterday morning I was driving to the San Jose Workers’ Compensation Appeals Board along 680 in the midst of some pretty gnarly traffic.  A woman followed me in her black Infiniti from roughly Danville to Dublin, tailgating.1

She was following me so closely, I could literally read her lips as she was chanting, “Oh my god, oh my god, oh my god.”

I kid you not.

  1. Photo courtesy of BillyPalooza [↩]
Jun
27
2009
2005 PDRS, Almaraz / Guzman, AMA Guides, Articles, Case Law, DFEC Rebuttal, Ogilvie, Vocational Rehabilitation, Workers Compensation Resources

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Always room for guest articles at PDRater!
Always room for guest articles at PDRater!

Emily Tincher has recently provided a vocational expert’s perspective on the Ogilvie and Almaraz/Guzman decisions.

Have you got an article on workers’ compensation you’d like to see published?  Drop me a line and let me know.1

Thanks Emily!

P.S. For those of who keeping score at home, this is my 200th post!!!  That’s 200 posts in 357 days or roughly a post every 1.7 days.

  1. Photo courtesy of Stephen Cummings [↩]
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 [↩]
Jun
4
2009
PDRater

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Fresno Workers' Compensation Appeals Board
Fresno Workers' Compensation Appeals Board
  • Workers’ Compensation Appeals Board – Fresno District Office (FRE)
  • 2550 Mariposa Street
    Fresno, CA 93721
  • Main:  (559) 445-5051
  • DEU:  (559) 445-6427
  • Information & Assistance:  (559) 445-5355

I have to be at the Fresno WCAB this afternoon. 1  Stop by and say hello if you’re in the area.

  1. Photo thanks to Google and their StreetView [↩]
May
19
2009
Author, PDRater

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A blustery day at the Stockton WCAB
A blustery day at the Stockton WCAB

I’ve got a hearing at the Stockton WCAB this morning. 1  Stop by and say hello if you’re in the area.

  1. Photo thanks to Google and their StreetView [↩]
May
18
2009
1997 PDRS, 2005 PDRS, Author, Calculators, Cell Phones, Combined Values Chart, DFEC Rebuttal, Free, Ogilvie, PDRater, Technobabble, Website Updates, Workers Compensation Resources

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Permanent disability calculators that will fit in your pocket!
Permanent disability calculators that will fit in any pocket!

I was at the San Jose WCAB on Friday.  Since recently discovering that I could run this website’s permanent disability rating calculators from my phone’s web browser, this was the first time I left my rating manual, money chart, and date wheel in the car.1

It was great.  That morning I used my phone to:

  • Find the ADJ number associated with the legacy SJO number on my file
  • Calculate an Ogilvie adjustment of a rating string
  • Calculate the number days between two dates
  • Perform old and new schedule ratings
  • Perform a CVC (combined values chart) calculation2

The benefit for me is not so much that I don’t have to carry the rating manuals, dollar value charts, and date wheels.  Unlike these tools, my phone is not something I’m going to misplace or loan and never see again.

The best part is that if I want to refer back to the calculation I just performed, I can just e-mail it to myself!

  1. Photo courtesy of .robbie [↩]
  2. Oh, and I called my client at one point.  Ha! [↩]
May
11
2009
Case Law, Downloads, Workers Compensation Resources

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Smith/Amar Reversed
Smith/Amar Reversed

Oral argument on Smith v. WCAB (California Youth Authority) went forward on Smith out that on April 7, 2009.  Today, we have the result – Smith/Amar has been unanimously reversed by the California Supreme Court in case number S150528.  Download a copy and read it for yourself here:

For more background on Smith/Amar, check out my prior post discussing the oral argument.

May
11
2009
2005 PDRS, Almaraz / Guzman, AMA Guides, Ogilvie, PDRater, Workers Compensation Resources

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Appeal (get it?)
Appeal (get it?)

Thanks to our friends at AppealsBoardReporter.com, we now have access to 22 amicus briefs filed in the Ogilvie and Almaraz/Guzman cases. 1 In late March 2009 the WCAB granted reconsideration of their recent Ogilvie and Almaraz/Guzman decisions – and invited the submission of amicus briefs.  You can read and download them here:

Who produced them?  Well, Ogilvie amicus briefs were filed by:

  • Morrow & Morrow
  • International Association of Rehabilitation Professionals
  • The Travelers Companies Inc.
  • Insurance Commissioner Steve Poizner
  • California Workers’ Compensation Institute

The Almaraz/Guzman briefs were filed by:

  • California Applicants’ Attorneys Association
  • California Chamber of Commerce-CSAC Excess Insurance Authority
  • County of Los Angeles
  • California Self-Insured Employers Association
  • California Society of Industrial Medicine and Surgery
  • California Workers’ Compensation Institute
  • Department of Industrial Relations Director John Duncan
  • Employers Direct Insurance Company
  • Phil Walker, Esq.
  • Phil Walker, Judicial Notice Request
  • Protected Insurance Program for Schools
  • Insurance Commissioner Steve Poizner
  • Safeway Inc.-The Boeing Co.-Schools Insurance Authority
  • San Diego Schools Joint Powers Authority
  • International Association of Rehabilitation Professionals
  • Morrow & Morrow
  • The Travelers Companies Inc.

After reviewing the above list, I have to wonder: Why doesn’t CAAA have an amicus brief for Ogilvie?  Does anyone know?

  1. Photo courtesy of Black Glenn.  Terrible pun courtesy of me. [↩]