Ogilvie questions (California)

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Ogilvie questions (California)

Postby laesquire on Sun Nov 01, 2009 4:24 pm

SCENARIO:

1. Applicant Attorney for the first time raises the Ogilvie issue on the day of trial. Not the MSC , but day of trial. The Defense objects ( optional issue/ waiver -discovery cut off at MSC). The Defense is overruled by the Judge as final decision on the record. The judge says the parties can develope the Ogilvie issue as the case proceeds.


QUESTION:

1. Must Ogilvie be raised at the MSC to be a proper trial issue?

2. If yes, would the defense remedy be a petition for removal or reconsideration?
:?
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Re: Ogilvie questions (California)

Postby jakelast@aol.com on Sun Nov 01, 2009 9:23 pm

I think there is a good argument that Ogilvie is actually a rating issue and can be raised at the time a PD rating is issued which means it does not have ot be raised prior to trial. It is really part and parcel of the issue of PD and raising that issue keeps the door open to inject Ogilvie into the case.
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Re: Ogilvie questions (California)

Postby davidd on Mon Nov 02, 2009 4:19 am

I agree it is a rating issue, but the problem I see Jake is that Ogilvie requires evidence and the MSC date forecloses additional evidence unless it was not available earlier, which is unlikely in such a situation.
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Re: Ogilvie questions (California)

Postby vampireinthenight on Mon Nov 02, 2009 9:48 am

Page 19 of the opinion indicates that the obtaining the rebuttal evidence prior to MSC is the preferred method. There "may be instances" where post-MSC rebuttal evidence is allowed. I would take that to mean that a party trying to rebut the schedule should to their best to estimate the rating before the MSC, or at least AT the MSC and not try the old surprise tactic.

I mean, really, your laziness in not doing so could be considered malpractice if the evidence is not allowed.
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Re: Ogilvie questions (California)

Postby laesquire on Mon Nov 02, 2009 2:31 pm

Seems to me AA has to raise the optional issue at the MSC.

If it was apportionment or something, the judge is mandated to follow current law.

Here AA arguably made a choice not to raise the rebuttal of 2005 PDS , but not raising it at the MSC.

It is an interesting argument, by checking to Permanant Disability box on the PTC statement does that trigger an Ogilvie analysis .
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Re: Ogilvie questions (California)

Postby vampireinthenight on Mon Nov 02, 2009 2:45 pm

Sure, maybe it's an issue, but where's the evidence? The party raising the issue has to overcome the burden with evidence. You can't just claim it is an "issue" and then re-rate it without proof.

I would not want to be in the position of explaining why, in all due diligence, I could not have anticipated the Ogilvie issue and at least gone to the EDD website to obtain the needed evidence prior to MSC.
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Re: Ogilvie questions (California)

Postby spreare on Tue Nov 03, 2009 6:54 am

Perhaps AA did not raise issue at MSC b/c Olgilve went through some recent transformation and only recently has AA had any kind of comprehension of it...
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Re: Ogilvie questions (California)

Postby jpod on Tue Nov 03, 2009 8:31 am

Does anyone have the answer to the second part of the question?

2. If yes, would the defense remedy be a petition for removal or reconsideration?
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Re: Ogilvie questions (California)

Postby danpelin on Wed Nov 04, 2009 11:02 am

You need to file a Petition for Removal, since the Judge's ruling is an interlocutory order versus a final order regarding the case. After the F&A is issued you would file the Petition for Reconsideration.
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