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Ogilvie Tips

by Micheal 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.
> How to Get the PTP Paid
> Defense Perspective on Causation
> Medicare Set Aside Myths
> Ogilvie Tips
> Ogilvie and the Vocational Expert
> Ogilvie Trial Brief
> Editor's Rant: Limping into 2010


 
 
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.

 
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)
 
 
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.

 
Replacing FEC with an “individualized rating to loss ratio” ordinarily results in significantly higher PD
 
 
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.

 
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.
 
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.
 
For Med-Legal calculators, go here.

To order the CAAA materials, go here.

Other resources include pdrater.
 

To estimate the Ogilvie factor using the CAAA Conversion Table:

  1. Estimate applicant’s earnings for three years post-DOI or other shorter (but as long as possible) defined period.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

   

 
 
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.

 
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
 
 
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.

   
 
 
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.

 
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.
 
 
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.

 
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.
 
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).
 
At the MSC, all the documents on which the Ogilvie calculation relies must be listed as Exhibits
 
 
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.
 
There are two ways to rate multiple WPIs
 
 
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.
   
 
 
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