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Pain is a complex phenomenon that has always bedeviled
impairment and disability rating systems. Because of
the way pain is treated in the rating procedures set
forth in the American Medical Association (AMA) Guides
to the Evaluation of Permanent Impairment, 5th Edition
(the AMA Guides) it is causing particular difficulty
in the California workers’ compensation system
as it pertains to the Permanent Disability Rating Schedule
(PDRS). Added to this is the requirement, per Labor
Code Sec. 4660, that an employee’s “diminished
future earning capacity” (DFEC) be taken into
account. The statute states:
(a) In determining the percentages of permanent
disability, account shall be taken of the nature of
the physical injury or disfigurement, the occupation
of the injured employee, and his or her age at the
time of the injury, consideration being given to an
employee’s diminished future earning capacity.
(b) (1) For purposes of this section, the “nature
of the physical injury or disfigurement” shall
incorporate the descriptions and measurements of physical
impairments and the corresponding percentages of impairments
published in the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment (5th
Edition).
As discussed by David J. DePaolo in CWCE Magazine (2006),
Chapter 18 of the AMA Guides, which deals with the evaluation
and rating of pain disorders, may fall well short of
providing any definitive basis for rating impairment
and disability caused by pain. Discussing a seminar
given by Philipp M. Lippe, MD., FACS, who was one of
the original authors of Chapter 18 of the AMA Guides
and is cited in the credits to Chapter 18, DePaolo wrote:
“In a seminar for members of the California
Society of Industrial Medicine and Surgery (CSIMS)
and (WorkCompSchool) Dr. Lippe explains that, as originally
authored, Chapter 18 on the impairment rating of pain
in the AMA Guides provided for up to an 80% whole
body impairment rating. According to Dr. Lippe, when
this Chapter was first presented to the AMA Guides’
editors, they felt that 80% was excessive, so they
assigned the Chapter 18 to other members of the American
Board of Pain Medicine. The colleagues of Dr. Lippe’s
then wrote the second iteration of Chapter 18 of the
AMA Guides. Astonishingly, the original 80% whole
body impairment rating for pain was reduced and presented
to the AMA Guides’ editors was the revised Chapter
18 pain impairment rating, now providing for a whole
body impairment of up to 40%. According to Dr. Lippe,
this too, was rejected by the editors of the AMA Guides
without explanation, without apology. Thereafter,
Chapter 18 of the AMA Guides was anonymously rewritten
to provide for the current 3% pain add-on.”
In addition to Labor Code Sec. 4660, there are issues
related to Labor Code Sec. 4662, which was not repealed,
changed, or modified by SB 899. While Section 4660 deals
with “percentage of permanent disability”
Section 4662 deals with “permanent disability;
presumption of total disability” and states:
Any of the following permanent disabilities should
be conclusively presumed to be total in character:
(a) Loss of both eyes or the sight thereof.
(b) Loss of both hands or the use thereof.
(c) An injury resulting in a practically total paralysis
(d) An injury to the brain resulting in incurable
imbecility or insanity.
In all other cases, permanent total disability shall
be determined in accordance with the facts.
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For
Robert Hall’s article,
“The New PDRS and the Determination of DFEC,”
click
here
For Robert Hall’s article, “Determining Diminished
Earning Capacity in the California Workers' Compensations
Program:
The "SEDEC" Method,”
click
here
For Dr. Hall’s article, “The "New"
Role for Vocational Rehabilitation in the California Workers'
Compensation System: A Comprehensive Vocational Rehabilitiation
Evaluation,” click
here
For Robert Hall’s article, “Multiple Impairments
and Their Impact on the DFEC Analysis,” click
here |
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Given the seemingly obvious limitations of the AMA
Guides with reference to the evaluation and estimation
of impairment and disability arising from pain-related
disorders, we are left with the question how we can
more effectively address these issues. To supplement
the AMA Guides we can look to other disability evaluation
systems to provide considerable guidance in this area.
In particular, the Social Security Administration (SSA)
as part of the Disability Insurance (SSDI) disability
determination process provides extensive and relevant
guidance with reference to the impact of pain on functional
capacity and employability issues.
Without going into too much depth, the interested reader
can review these guidelines on SSA’s website http://www.socialsecurity.gov/.
In particular, two sections of the Code of Federal Regulations
re: SSA procedures are most helpful. First, SSA’s
discussion of how residual function capacity is addressed
and next how a patient’s symptoms, including pain,
are evaluated .
In general, the following information is given with
regard to how a patient’s pain symptoms should
be evaluated
(CFR §404.1529):
“Factors relevant to your symptoms, such as
pain, which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity
of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects
of any medication you take or have taken to alleviate
your pain or other symptoms;
(v) Treatment, other than medication, you receive
or have received for relief of your pain or other
symptoms;
(vi) Any measures you use or have used to relieve
your pain or other symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping
on a board, etc.); and
(vii) Other factors concerning your functional limitations
and restrictions due to pain or other symptoms.”
Additionally, in Chapter 6 of the SSA Handbook, inability
to perform basic work activities as a basis for determination
of severe impairment and disability is discussed:
“(b) Basic work activities. When we talk about
basic work activities, we mean the abilities and aptitudes
necessary to do most jobs. Examples of these include—
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers
and usual work situations; and
(6) Dealing with changes in a routine work setting.”
(SSA Handbook, 2008)
SSA further distinguishes between exertional
and non-exertional limitations as a basis for determining
the ability to meet the demands of work:
(b) Exertional limitations. When the limitations
and restrictions imposed by your impairment(s) and
related symptoms, such as pain, affect only your ability
to meet the strength demands of jobs (sitting, standing,
walking, lifting, carrying, pushing, and pulling),
we consider that you have only exertional limitations.
(c) Nonexertional limitations. (1) When the limitations
and restrictions imposed by your impairment(s) and
related symptoms, such as pain, affect only your ability
to meet the demands of jobs other than the strength
demands, we consider that you have only nonexertional
limitations or restrictions. Some examples of nonexertional
limitations or restrictions include the following:
(i) You have difficulty functioning because you are
nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or
concentrating;
(iii) You have difficulty understanding or remembering
detailed instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s)
of certain work settings, e.g., you cannot tolerate
dust or fumes; or
(vi) You have difficulty performing the manipulative
or postural functions of some work such as reaching,
handling, stooping, climbing, crawling, or crouching.
All of the issues identified above in the SSA guidelines
and other documents have implications for vocational
analysis of the impact of pain on employability and
earnings capacity. Each of the above areas of work limitation
can be occupationally analyzed through use of standardized
occupational information systems, using U.S. Department
of Labor data from the old Dictionary of Occupation
Titles and the new O*NET database . Corresponding occupational
factors exist to analyze the impact of impairment in
these areas on occupational performance.
The basis of any vocational opinion regarding the impact
of pain on employability or earnings capacity is medical
opinion re: impacted functional capacity due to pain
issues. The standard areas of physical functioning that
can be impacted by pain include those outlined by SSA
above or are contained in standard functional capacity
reporting forms, which at minimum include the DWC
form PR-4. However, consideration should be given
to having actual functional capacity testing performed
to adequately assess and document both the physical
and behavioral aspects of pain behavior as it is relates
to physical activity.
In order to obtain the needed medical documentation
of the impact of pain on physical and mental functioning,
it is necessary the following areas should be addressed
by mental health, pain management, or other qualified
health care professionals:
- Ability to comprehend & follow instructions
(U)
- Ability to perform simple & repetitive work
(R)
- Ability to maintain a work pace appropriate to a
given work load
- Ability to perform complex & varied tasks (V)
- Ability to relate to other people beyond giving
& receiving instructions (P)
- Ability to influence people (I)
- Ability to make generalizations, evaluations or
decisions without immediate supervision (J)
- Ability to accept and carry out responsibility for
direction, control, and planning (D)
- Ability to express and interpret feelings, ideas,
or facts (E)
These above factors correspond to descriptors in the
above referenced Dictionary of Occupational Titles occupational
descriptions and can be analyzed singly or jointly with
use of DOT-based occupational analysis software. In
addition to these above factors, the O*NET database
includes many more occupation descriptors that a very
rich in behavioral and cognitive information. The O*NET
factors (both personal abilities and work factors) that
can be analyzed include the following:
Ability Factors:
- Reasoning: Inductive, Deductive, Verbal, Mathematical
- Comprehension: Oral & Written
- Attention
- Stamina
- Memorization
- Reaction Time
Work Factors:
- Face-to-Face Discussions
- Time Pressure
- Consequence of Error
- Structured versus Unstructured Work
- Deal with Unpleasant or Angry People
- Conflict Situations
Obviously, people experiencing significant pain can
experience limitations in the above abilities or in
their tolerance for exposure to certain work environments
and demands. Once obtained, medical reports containing
the above kind of functional information serve as a
basis for analyzing job demands and occupational data.
Vocational experts can then comment upon the impact
of limitations in these abilities/capacities or to perform
certain types of works tasks on an individual’s
capacity to perform single occupations or groups of
occupations and to what degree job modifications or
accommodations are reasonably available to allow someone
to perform job tasks, given certain medical work restrictions.
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| For
the role of pain in Social Security decisions, click
here. |
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For more information on determination of lost earnings
capacity and dealing with multiple impairments, click
here.
About the Author:
Dr. Robert Hall has practiced as a Vocational Rehabilitation
consultant in California since 1980.
He has served as Director of the Work & Health Technologies
Center at San Diego State University
and as Adjunct Professor in SDSU’s graduate Rehabilitation
Counseling Program since 1993.
Dr. Hall has conducted extensive research and training
activities in disability, rehabilitation, and return-to-work
programs. Dr. Hall has consulted
with and provided training to a variety of health
and human service organizations in the areas of rehabilitation
program development & evaluation.
Robert Hall, Ph.D.
Certified Rehabilitation Counselor
Certified Disability Management Specialist
Hall Associates
7290 Navajo Rd. #105
San Diego, Ca. 92119
Phone: (619) 463-9334
Fax: (619) 463-9337
info@rehabsource.org
http://www.rehabsource.org/
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