Application of Ogilvie in practice (California) (California)

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Application of Ogilvie in practice (California) (California)

Postby rhinocomplawyer on Sat Mar 28, 2009 10:46 am

Although nearly two months have passed since the en banc WCAB decision in Ogilvie, allowing parties to rebut the FEC modifier, I have seen little effort by attorneys to apply Ogilvie to their cases. Instead, most of the focus is on Guzman/Almaraz. Frankly, this surprises me. When I applied Ogilvie to a simple DRE case involving a $10/hr worker who went to $8/hr after injury, the revised FEC modifier under Ogilvie adjusted a 13% standard to a 33% standard. You can see how that happened at http://www.rhinocomplawyer.com. I would like to hear from other lawyers how they are using Ogilvie in their day to day practices.
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Re: Application of Ogilvie in practice

Postby davidd on Sun Mar 29, 2009 5:24 am

This is timely Rhino.

Late Friday afternoon we finally posted our modified 2005 PDRS calculator on the main site, which includes both Ogilvie and Almaraz options, and which gives you comparative ratings in a single screen, so you can see the variation in ratings and $$.

I invite folks to give it a try and give us your feedback as well. We'll see how long they stay posted (i.e. pending appeals and threatening letters from the DIR chief!).
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Re: Application of Ogilvie in practice (California) (California)

Postby MHarrisLaw@verizon.net on Mon Mar 30, 2009 6:42 am

David, the Almaraz button shows what we know -- that PD ratings were halved or decreased even more under the new "regime" even before apportionment. How do we make use of this "Almaraz option" in view of the Board's statement: "We very strongly emphasize, however, that the method for evaluating impairment described above does not mean that an impairment rating can be directly or indirectly based on what the employee’s work preclusions would have rated under the old Schedule, had it been applicable."

Please advise.

Marjory Harris
Certified Specialist in Workers' Compensation Law
State Bar of California
San Francisco Bay Area & Inland Empire
Marjory Harris
Certified Specialist in Workers' Compensation Law
San Francisco Bay Area & Inland Empire
Editor, getMedLegal Magazine
(888) 858-9882
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Re: Application of Ogilvie in practice (California) (California)

Postby davidd on Mon Mar 30, 2009 7:10 am

Hi Marjory - I'm glad you took a look.

I'm not sure I understand your question though. We assumed that physicians would, as in Almaraz, offer descriptions of disability/impairment similar to the old descriptors - e.g. work preclusion, etc. I take the Board's statement as meaning that while it is not necessary that the impairment be based on the old schedule - note that the Board states "does not mean that" rather than "shall not be"....

So, you are free to input any impairment standard (note that value you input can be edited/changed). The Alamaraz button provides suggestions based upon what physicians likely will provide.

Does this help?
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Re: Application of Ogilvie in practice

Postby davidd on Tue Mar 31, 2009 3:46 am

I've attached a critique of our Almaraz calculator modification by rater Luis Perez-Cordero. It is a fair critique.

Lacking any other option, however, we have presently elected to keep the addition to provide a rating comparison. The parties should have some idea of the value of the case without having to utilize the services of an expert in every case to determine if a rating is fair and equitable, as Almaraz/Guzman would apparently have the parties do.

I encourage folks to provide us with rated Almaraz/Guzman language to input into our database so that we can develop something more useful.

Remember that the "standard" can always be overwritten, so if a physician states that the impairment value is "x" then you can input that directly and overwrite anything that the AMA impairment standard would otherwise be.

In the meantime, the following statement will appear at the top of the Almaraz pop-up:

NOTE: Almaraz/Guzman specifically state ratings shall not be "directly or indirectly based upon any Schedule in effect prior to 2005, regardless of how 'fair' such a rating might seem to a physician, litigant, or trier-of-fact." This menu of legacy standards is for comparison purposes only to assist the user determine if pursuit of a more "fair and equitable" rating is appropriate. The user should consult a rating expert and not rely upon this calculator for a final rating determination.

Also, feedback on the Ogilvie portion of the calculator is welcome as well.
Attachments
WC Central - Almaraz Calculator.pdf
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Re: Application of Ogilvie in practice (California) (California)

Postby jpod on Tue Mar 31, 2009 7:31 am

David I guess I am inept. I can not find the Almarez calulator. I clicked on calculators tab on www.workcompcentral.com and did not see an Alvarez calulator.

Also the pdf file you posted this morning does not seem to work for me, when I click on it, open it, I get amessage that says file can not be found.
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Re: Application of Ogilvie in practice (California) (California)

Postby davidd on Tue Mar 31, 2009 7:35 am

Hi Jpod -

After logging in click on Calculators -> 2005 PDRS. The Alamaraz option is a link on the right side about half way down the data entry field set.

Don't know what to tell you about the attachment here. It is a standard PDF, and as you can see by the stats, has been downloaded quite a bit since posted this morning. I tested and had no issues. Maybe restart your computer?
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Re: Application of Ogilvie in practice (California) (California)

Postby jpod on Tue Mar 31, 2009 8:47 am

I guess I had to save it first, then open...I had tried to just open...

Thanks for the help out of ineptitude land.
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