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Ogilvie Tips
by Michael C. Grimes, Esq.
Michael C. Grimes is an applicant’s
attorney in the San Francisco Bay Area. In this article he offers
tips for successfully presenting Ogilvie calculations.
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The WCAB en banc decisions in Ogilvie
I (2/3/09) 74 CCC 248 and the re-recon in Ogilvie II
(9/3/09) 74 CCC 1127 provide the practitioner with an opportunity
to sharply increase permanent disability awards (“PD”)
by up to 50% for injured workers suffering a steep drop in post-injury
earnings—the most deserving. Here are some pointers to help
practitioners use this new tool. This article assumes familiarity
with the Ogilvie calculation.
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Wanda Ogilvie
v. City and County of San Francisco, Permissibly Self-Insured (2/23/09) 74 Cal. Comp.
Cases 248 (Ogilvie I); Wanda Ogilvie
v. City and County of San Francisco, Permissibly Self-Insured (9/3/09) 74 Cal. Comp. Cases 1127 (Ogilvie
II)
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Ogilvie Overview
In Ogilvie I, the
WCAB provided a step-by-step method of rebutting the diminished future
earnings capacity (“FEC”) adjustment factor in the 2005
rating schedule and replacing it with an “individualized rating
to loss ratio” which ordinarily results in significantly higher
PD. Ogilvie II answers the parties’ and amicus’ briefs
and resoundingly reaffirms the basic formula for rebutting the FEC
factor.
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Replacing FEC with an “individualized
rating to loss ratio” ordinarily results in significantly
higher PD
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First Tip: Decide whether there
is an Ogilvie case worth pursuing
An obvious case where Ogilvie does not apply is where the injured
worker has the same earnings after the injury as before. An obvious
case where Ogilvie will help is where the injured worker has
no post-injury earnings. Between these two polls is an occasionally
uneven spread.
For cases between the two polls, it’s a good idea to get an
estimate of whether an Ogilvie case is worth pursuing. The
time to do this is normally when a rating report arrives. There are
many ways to determine whether an Ogilvie case is worth pursuing.
All methods require that we identify two facts, actual or estimated:
the AMA Guide whole person impairment (“WPI”) and the
worker’s post-date-of-injury (“DOI”) earnings for
three years or less (but as long as possible). A third actual or estimated
fact is also required for an Ogilvie estimate--the earnings
of a comparable worker for exactly the same period as that used for
the post-DOI earnings. This third fact is often supplied by suppliers
of Ogilvie calculations or Vocational Experts but we can also
look it up ourselves as described below.
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It’s a good idea to get
an estimate of whether an Ogilvie case is worth pursuing. All
methods require that we identify two facts, actual or estimated: the
AMA Guide whole person impairment (“WPI”) and the worker’s
post-date-of-injury (“DOI”) earnings for three years or
less. A third actual or estimated fact is also required for an Ogilvie
estimate--the earnings of a comparable worker for exactly the same
period as that used for the post-DOI earnings.
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Med-Legal and other providers offer
inexpensive Ogilvie calculations. Med-Legal will provide Ogilvie
calculations on a lien. Reasonable Ogilvie calculation costs
are recoverable under Labor Code §5811.
We can also do our own estimate using the three actual or estimated
facts and the CAAA Ogilvie Conversion Table. The Conversion Table
is reproduced in the program materials for the CAAA 2009 Summer Convention
and the CAAA March, 2009 “Ogilvie, Regs and EAMS”
program.
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To estimate the Ogilvie factor using the CAAA Conversion
Table:
- Estimate applicant’s earnings
for three years post-DOI or other shorter (but as long as possible)
defined period.
- Estimate the earnings of a comparable worker for exactly the
same period. One way to do this is to estimate what the injured
worker would have made during the same period. Another is to look
it up for comparable workers on the Employment Development Department
(“EDD”) website as Ogilvie I suggests from
the links at Ogilvie I footnotes 18 to 22.
- To get a figure for
the percentage loss of earnings, subtract 1 above from 2 above.
Divide the resulting figure (the actual wage loss) by 2 above
(comparable worker earnings). This provides the proportional
loss of earnings expressed as earnings loss percentage.
- The CAAA Ogilvie Conversion Table has rows for earnings
loss percent and columns for WPI rating. Find the intersection
of the WPI column and earnings loss percentage row (the figure
from 3 above) on the chart that applies to the case. This produces
the Ogilvie FEC factor applicable to that WPI.
- If the FEC factor from your estimates and the CAAA Conversion
Table produces a higher rating than the 2005 Schedule’s
FEC factor, it is worth running the numbers all the way out to
compare outcomes. Remember to adjust for age and occupation as
well.
Two caveats: first, we should exercise caution in not pursuing
an Ogilvie case based on inaccurate estimates and second,
for now at least, the CAAA Ogilvie Conversion Table should
probably not be used in briefs. In briefs, we need to show the whole
chain of calculations so they can be checked. However, the CAAA
Ogilvie Conversion Table is extremely useful for estimates
and to double check any Ogilvie calculation, whether done
by an expert or yourself.
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Second Tip: Decide whether
to hire a Vocational Expert
Ogilvie I says, in effect, the WCAB is establishing a simple, easily
computed formula that does not need an expert. Ogilvie
I at 74 CCC
259, 277. No doubt, someday that will be the case. However, the issue
does not stop there. Ogilvie is still new and is incompletely understood
by many parties and judges. It is also somewhat confusing in its
apparent mathematical complexity. In some district boards, experts
are locally required for an Ogilvie analysis.
The decision about
whether to hire an expert turns primarily on local conditions, and
ultimately, the possible judge. It also turns on whether our case
has contested issues where vocational expert testimony is needed,
like for the applicant’s exact job title and to identify which
occupational code and chart to use from the EDD website for comparable
workers.
When in doubt, we get an expert. The costs, whether the
results are used or not, are reimbursable under Labor Code §5811.
Costa v. Hardy Diagnostics (2007) 72 CCC 1492. If the expert makes
a mistake and we are forced to decide whether to get back in line
or compute it ourselves, the author fixed one himself with a thoughtful
brief and it worked out fine with a smart, pro-applicant judge.
The author has also used a vocational expert hired before Ogilvie
was issued for a LeBoeuf 100% issue to review the author’s
Ogilvie calculations and brief. The expert testified at trial
that he would have used the same job category, same comparable wages
and would have arrived at the same figures as did the author, cementing
the Ogilvie issue.
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The decision about whether to
hire an expert turns primarily on local conditions, and ultimately,
the possible judge. It also turns on whether our case has contested
issues where vocational expert testimony is needed
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Third Tip: Track the RAND
Study and Current Law as did the
WCAB in Ogilvie
This is a “big picture” issue. While Ogilvie II did
not change the formula, it did emphasize a point well worth noting.
While each factor in the 2005 rating schedule is rebuttable, Ogilvie
II requires rebutting the FEC factor with an “individualized
DFEC [sic] adjustment factor [which] must be consistent with
section 4660(b)(1), the RAND data to which section 4660(b)(1) refers,
and the numeric formula adopted by the“ 2005 schedule. [Emphasis
added. Ogilvie II, slip op. at p. 45. ]
The WCAB tracked existing
law and the RAND study as closely as possible to make its’ opinion
as appeal-proof as possible. Time will tell but the author
thinks the board accomplished their objective. We need to
do the same in arguing the application of Ogilvie in a particular
case for similar reasons. When we have the choice of doing
something that either tracks the RAND study and existing
law versus something picked from thin air, we should choose
the former. The WCJ is more likely to support such arguments
and favorable decisions will be less vulnerable to reconsideration.
As one example of this, the first step of an Ogilvie analysis
is to determine from “objective evidence” the
injured worker’s post- injury earnings for three years
(or less) from the date of injury. Why should the date of
injury be used? Because that is what RAND used. Why should
it be three years? Because that is what RAND used. As a caveat
aside, Ogilvie I also said “there is no magic in three
years.” It then provides specific examples of fact
patterns where using either three years or the date of injury
may not be appropriate and therefore other periods and beginning
dates could be used. But note, that it suggests other options
only when the preferred RAND-like option won’t work.
We’d best take the same approach.
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Fourth Tip: Use the data sources
suggested by Ogilvie
As a corollary to the fourth tip, when the Ogilvie opinions
suggest using a particular kind of data for computing the Ogilvie
formula, we need to use that kind data if at all possible. As one
example, Ogilvie I states that in determining the injured workers’
“actual earnings” post injury: “Generally, this
will be accomplished by having the employee obtain his or her wage
information from EDD.” Ogilvie I, 74 CCC at 266, slip
op. at p. 24.
As a practical matter, Applicant’s
Attorney can obtain EDD wage data through Med-Legal or by faxing
to EDD their form for this information. Applicant’s Attorney
may also fax to EDD, Document Mgt. Grp., MIC 23B at 916-255-6453
the injured workers’ name and signature on a release for this
information, SS#, the time period desired and the contact information
for the attorney to receive the information. EDD says to allow up
to 8 weeks from the request to receive this information. The author’s
experience is that EDD responds within three weeks, assuming the
information you have given them is accurate.
Ogilvie I also states that EDD data is not the only way to
prove wage loss but rather “other empirical earnings
information may also be used.” Id. [Emphasis added.]
The opinion lists Social Security records, federal and state tax records
and W-2s. Ogilvie does not say that applicant’s testimony
is acceptable. The use of the term “empirical evidence”
in the preceding quote is ambiguous in this context but could imply
that such testimony is not acceptable, at least without justification
as to why more objective data is not available.
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As a practical matter, Applicant’s
Attorney can obtain EDD wage data through Med-Legal or by faxing
to EDD their form for this information.
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Fifth Tip: Serve defendants
with either a Request for Rating or Request for Rating Instruction
to DEU with your Ogilvie calculations and briefed legal points
well before the MSC
There are differences of opinion on this topic but this writer comes
down on the side of early disclosure. If the other side wants a deposition
on Ogilvie issues, early disclosure mitigates against an Order
Taking Off Calendar at the Mandatory Settlement Conference (“MSC”)
for further discovery. It strengthens settlement posture. It has the
inherent strength of the high road. The data is not going to change
because it is disclosed.
A Request for Rating (by the WCJ) is useful where the judge will decide
how to rate the injury, or where the usual practice for that judge
or board is to refer the rating to the DEU. The Request for Rating
Instruction has the added advantage that if the judge does not issue
the rating instructions requested, we can move to strike the rating
instruction within 12 (7 + 5) days from service and request a hearing.
8 CCR §10602. This provides another opportunity to brief and
argue the point to educate the judge further and it shows seriousness.
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Early disclosure strengthens
settlement posture. It has the inherent strength of the high road.
The data is not going to change because it is disclosed.
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Needless to say, it pays to watch
the judge closely and listen carefully to the judge’s comments
to identify issues that need further clarification given the opportunity.
Ogilvie is new law and there are practically as many impressions
of it as there are judges at this point.
At the MSC, all the documents
on which the Ogilvie calculation relies must be listed as Exhibits:
the EDD wage report, each applicable year of the EDD website pages
showing earnings of comparable workers and the medical report(s).
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At the MSC, all the documents
on which the Ogilvie calculation relies must be listed as Exhibits
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Sixth Tip: Unless it is certain
either the judge or the DEU rater will apply Ogilvie correctly,
keep the issue away from the DEU if possible in multiple WPI cases
There are two ways to rate multiple WPIs. Ogilvie provides
only indirect guidance on how to rate multiple WPIs because it involved
a negotiated, single, stipulated, and adjusted rating derived from
several injured body parts. Ogilvie I, Slip Op. at
p. 4. Sooner or later, this will be a battleground issue.
One way to rate
multiple WPIs that the author believed until recently was universally used, is
to do an Ogilvie calculation for an FEC factor on each WPI, adjust for age and
occupation and then apply the combined values chart at the end to the string
of final ratings.
Recently, the author discovered some DEU raters are using another
method that results in PD that is higher than a straight 2005 rating schedule
rating but lower than the first method described in the preceding paragraph.
That method is to combine all WPIs using the combined values chart first, Ogilvie the combined WPI figure to get a single FEC factor and then adjust each WPI by
the same FEC factor, adjust each WPI for age and occupation, and then apply the
combined values chart a second time to the final adjusted ratings.
It is unclear how widespread the DEU use of this method is and how
rigidly it is being applied. In reviewing LawNet posts, it has popped
up at boards in both the South and the North. At one board, the DEU
provided the judge with three ratings: one using the straight rating
schedule, another using the standard Ogilvie method and another,
for lack of a better term, using the DEU conceived method. It is worth
considering where the best rating for the injured worker will emerge
and strategize accordingly. It is also worth considering useful arguments
favoring the standard Ogilvie rating method.
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| There are two ways to rate multiple
WPIs |
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Current Status of the Ogilvie
Case
Ogilvie is on appeal to the 1st District Court of Appeal and is awaiting
a decision on whether the court will grant or deny a writ of review.
The Appeal court has not issued a stay, so Ogilvie is still good
and immediately applicable law.
On December 22, 2009, a three member panel of the WCAB issued a decision
in a case with unique Ogilvie facts. The case, Bowden v.
Sunray Termite Control, features a stipulation between the parties
that if Ogilvie is overturned on appeal, applicant would
get a 26% rating but if Ogilvie stands the rating would be
44%. The WCJ ruled that the Ogilvie increase to 44% applied.
The panel, based on defendant’s argument that if it paid the
Ogilvie increase now, it might have no means to recoup the
credit if Ogilvie is reversed, overruled the WCJ. The panel
granted benefits based on 26% now and deferred the issue of whether
the Ogilvie increase would apply. It has been suggested that
the panel decision should be appealed to short circuit such refusals
to apply applicable law.
A letter dated January 13, 2010 from Board Chairman Miller to the
defense attorney stated, "We believe it is a purely fact driven case
and is not meant to be a statement of legal importance to the community."
For entire text of letter, click here. |
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Michael Grimes began practicing law in 1984 after a 10 year career staffing
for the National, California and San Francisco AFL-CIOs, including
a stint on Hubert Humphrey’s
Presidential Campaign staff in 1972. He has represented injured
workers from the beginning, more or less exclusively since 1996
at the San Francisco, San Jose and occasionally Oakland venues.
He is a member of the California Applicants’ Attorneys’ Association.
Law Offices of Michael C. Grimes
795 4th Ave., Suite 207
Redwood
City, CA 94063-3936
Tel: (650) 261-1754
Fax: (650) 261-1755
mgrimes@sbcglobal.net
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