The WCAB is soliciting input on vocational rehabilitation
The WCAB has just issued an “Order Allowing Amicus Briefs” (en banc) in the Weiner v. Ralph’s Company case.1 The Weiner case is about the effect of the legislature’s repeal of Labor Code Section 139.5 as of January 1, 2009. The repeal of this statute may have the effect of terminating all rights to vocational rehabilitation.
For the curious, you can download a copy of the Order Allowing Amicus Briefs (en banc) here:
"Hi, is this the room for the bench and bar meetings? I brought my brown bag lunch!"
I was recently invited to participate on the Oakland Bench & Bar Committee. The first meeting of the rejuvenated committee is going to take place tomorrow. 12
The committee includes a wide variety of stakeholders from the community – applicant, defense, lien claimants, and judges. The purpose of this committee is to foster discussion of issues of concern to the WCAB Oakland district office and the community.
Ideas?
I realize this is short notice, but is there a topic/issue you would like brought up at the bench and bar meeting tomorrow? Leave a comment or send me an e-mail!
Nothing fancy – everyone’s bringing their own brown bag lunch. [↩]
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:
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
Any interested party may file an amicus brief no later than May 1, 2009 at 5pm.
I was recently sent feedback about the Ogilvie DFEC rebuttal calculator on this website. 1 Here’s how I’ve incorporated that feedback:
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.
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:
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.
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.
Is it possible to get an Ogilvie DFEC adjusted whole person impairment above 100%?
I believe it mightbe 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.
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
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.
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.
Jay, why in the world did the Ogilvie DFEC calculator reference “standard disability”? Shouldn’t it say “whole person impairment”?
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.
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. [↩]
I know it has a less than friendly error message about this. I’ll see what I can do about fixing that. [↩]
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! [↩]
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:
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.
Last month I mentioned that this website had a record number of new visitors. I honestly thought that was an anomalous one day spike in traffic. Instead we’ve had a sustained increase in new visitors and people signing up to use the workers’ compensation calculators for free.
Since February 13, 20091 I’ve enjoyed posting about:
Ever since I relaunched this website I’ve had this idea in the back of my mind that getting to 500 users would be a big deal. There are literally hundreds of workers’ compensation professionals who rely on this website and its calculators to make their lives a little easier. This certainly feels like a big deal to me.
California Court of Appeals, Sixth Appellate District
Just when you thought things couldn’t get any crazier in workers’ compensation than Ogilvie, Almaraz/Guzman, Benson, and XyzzxSJO2. Yesterday I found out that on April 7, 2009 the case of Smith v. WCAB (California Youth Authority) is on calendar for oral argument. As with Almaraz/Guzman, Smith v. WCAB dealt with similar legal issues across two particular workers’ compensation cases. In case you missed it, here’s the court of appeal decision:
Smith involved an informal denial of medical treatment without a formal petition to terminate medical care under L.C. 4607, after an award of permanent disability. Eight years after Smith’s award, SCIF refused to authorize epidural injections. Smith’s attorney sought utilization review, Smith was reexamined by the AME who said the injections were necessary to relieve from the effects of the industrial injury. Although SCIF then authorized the injections without the need for a hearing, Smith’s attorney sought fees under L.C. 4607.
The WCJ denied Smith’s attorney’s petition for fess since there was no formal petition to terminated medical care. The WCAB denied reconsideration on the grounds that SCIF’s was not denying all medical treatment.
Amar is substantially similar to Smith, except that in Amar the workers’ compensation judge took the extra step of opining that SCIF’s denial of medical treatment was made in good faith, not unreasonable, and not improper.
However, the 2nd Appellate Court reversed the WCAB in Smith and Amar, stating in relevant part:
“We see no difference when a carrier informally denies some of the treatment that is a necessary part of medical care previously awarded. This is tantamount to a petition to deny medical care even though the carrier continues to provide treatment for some of applicant’s medical care.”
“Insurance carriers who fail to provide previously awarded medical care may not avoid attorney fees to successful applicants’ attorneys through the expedient of an informal denial, even when they do so in good faith.”
I would love to watch the oral argument on this case – but Los Angeles is a bit of a hike for me. 1 I am very very interested to see how this case shakes out.
I last watched oral argument on the Mt. Diablo Unified School District v. WCAB (Rollick) case back on 8/5/2008. It was particularly interesting for me since I was familiar with the applicant attorney, defense attorney, and facts of that case. If nothing else, its always fun to watch judges get snarky. [↩]
I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year. If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access. 2
Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator. The actuarial math involved in performing that calculation is … intense.
As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase. Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used. I was pretty disappointed to find this out.
No matter! Help beta test the new calculator by dropping me a line. After you’ve given it a whirl, let me know what you think.
At the end of January I was fortunate enough to witness more security shenanigans.
A man in line behind me took off all metal from his person and placed it in the provided gray plastic bin. Here’s a summary of the exchange between this gentleman and the security guard:
Security: Sir, you’re going to have to take off your belt.
Man: My belt buckle is metal. I took it off, see? There’s no metal in my belt.
Security: That doesn’t matter, sir. Please take off your belt.
Man: But, there’s no metal in it.
Security: Sir, you’re going to need to put your belt through the metal detector.
The man finally took off his belt…
I have several problems with this2 “security procedure.”
It is irrational and absurd.
This system encourages security guards to be lazy and unobservant, encouraging the hiring of unsophisticated or untrained security guards.
This system places too much importance on the value of x-ray machines.
Let’s take this point by point, shall we?
First, when challenged to provide any rationale for their demands, the security staff resorts to argumentum ad verecundiam. 3 There’s no reason why a non-metal belt buckle or, heaven forbid a piece of paper, needs to be fed into the x-ray machine. They’re not security risks.
Second, the current system allows the security guards to insist all detachable belongings be fed into the x-ray machine. 45 The current system essentially removes the incentive for hiring trained, competent, or intelligent staff. And, really, why should they? A mannequin with a sign around its neck could instruct everyone to remove all belongings.
Finally, the current system allows all the security guards at the Oakland state building to place too much importance on the x-ray machines. Once you’ve placed your belongings6 in the plastic bin, you aren’t given a second glance. What happens if someone decides to conceal a dangerous non-metalic object on their person? These security guards believe that paper should be x-rayed! I’m supposed to trust in their powers of keen observation?
Can you tell I’m frustrated with the security situation at the Oakland WCAB?
Latin argument for “appeal to authority” aka “I have a badge so I must be right” aka “‘Cause I said so, that’s why.” [↩]
Don’t forget to put your right to privacy in that bin. After all, you don’t have anything to hide from Big Brother, do you? [↩]
For a while they actually required the removal of shoes too. Taking your shoes off at the airport is bad enough. But at the Oakland state building??? [↩]
And dignity! Don’t forget your dignity! Don’t worry, after a couple of times through this system it will be small enough to fit comfortably between your cell phone and belt buckle. [↩]
