Jenna’s Library Ogilvie II

Ogilvie II: (ADJ1177048) en banc opinion after reconsideration; 9/3/2009

The main lessons found in Ogilvie II and the later cases of Noriega Garcia, Jon Shini and Albert Hudsonare that we need to determine the relevant period of lost earnings and the reasons the injured work has lost earnings.

    1. The mechanical application of the Ogilvie formula is not a sufficient evidence for rebutting the prima facie evidence of the diminished future earning capacity (DFEC).2. The period of the injured worker’s lost earnings is relevant. We need to evaluate what period of lost earnings is in question. If the injured worker had 104 weeks of TD and was not P&S until 6 months before trial, then the period of lost earnings may not be sufficient. The judge must be able to assess why the injured worker has the lost earnings. It could be premature to make the assessment if the period of lost earnings is a very short period.
    2. TD does not count as earnings. TD is calculated based upon the applicant’s earnings at time of injury. TD is not indicative of an applicant’s diminished earning capacity.
    3. The evidence and analysis must reflect why the applicant has lost earnings. The judge needs to consider the factors from the old Montana case. These Montana factors usually include:

a. the applicant’s ability to work,
b. his or her age and health,
c. his or her willingness and motivation,
d. his or her opportunities to work,
e. his or her skill and education,
f. general condition of the labor market, and
g. employment opportunities for persons similarly situated.

Vocational experts are usually needed to provide the evidence. The Board will likely hold the defendant responsible for paying the reasonable costs of the experts.