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SB 899 was hailed as reform legislation which would,
in relation to permanent disability, restore objectivity
to the rating schedule by, among other things, almost
eliminating pain as a factor of permanent disability.
This was achieved by amending Labor Code 4660 to include
the following:
(b) (1)... “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).
The pain chapter in the AMA Guides ignored the original
authors’ impairment ratings and anonymously substituted
a minor add-on for pain of 3% no matter how many or
how serious the impairments.[See
Hall article in this issue quoting David J. DePaolo]
This was incorporated into the 2005 “Schedule
For Rating Permanent Disabilities” at page 1-12:
“Pursuant to Chapter 18 of the AMA Guides, a whole
person impairment rating based on the body or organ
rating system of the AMA Guides (Chapters 3 through
17) may be increased by up to 3% WPI if the burden of
the worker’s condition has been increased by pain-related
impairment in excess of the pain component already incorporated
in the WPI rating in Chapters 3-17. (AMA Guides, p.
573.)….The maximum allowance for pain resulting
from a single injury is 3% WPI regardless of the number
of impairments resulting from that injury.”
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Hippocratic
Hypocrisy?
While doctors are perfectly willing to treat patients
based on complaints of pain – one of the most common
symptoms leading patients to their offices -- the same
doctors must later discount the complaints of pain as
“subjective” when evaluating permanent impairment,
especially if the complaint is back pain or headaches.
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“Physicians
recognize the local and distant pain that commonly accompanies
many disorders. Impairment ratings in the Guides already
have accounted for commonly associated pain, including
that which may be experienced in areas distant to the
specific site
of pathology.” Guides at
page 10 |
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High whole person impairment ratings
are available in the Guides for painful conditions not
usually found to be industrial (see, e.g., peripheral
vascular disease, heart disease); yet pain seems to be
discounted on the most common types of industrial conditions,
the orthopedic injuries to spine and joints. The highest
rating for severe sciatica is 28%, to which 3% for pain
could be added, yet the Guides note, on page 566, “Physicians
need to use their clinical judgment as to what constitutes
normal or expected pain in conditions that produce widely
variable amounts of pain; a herniated lumbar disk, for
example, may be completely painless or incapacitatingly
painful.” The incapacitated back patient would have,
at the most, a 31% WPI, but if incapacitated with chest
pain, would qualify for 90 to 100% WPI (see examples,
page 41 of the Guides).
No one familiar with the Guides can claim that opus is
internally consistent, objective, and fairly evaluates
impairment of function in a truly meaningful way. One
of the most obvious failures of the Guides to have any
real relevance to evaluating disability is Chapter 18,
which discusses chronic pain.
“Pain is subjective. Its presence cannot be readily
validated or objectively measured. Physicians are confronted
with ambiguity as they attempt to assess the severity
and significance of chronic pain in their patients. In
large part, this stems from the fundamental divide between
a person who suffers from pain and an observer who attempts
to understand that suffering. Observers tend to view pain
complaints with suspicion and disbelief, akin to complaints
of dizziness, fatigue, and malaise.” Page 566
While Chapter 18 recognizes that advances in neuroscience
have revealed a physiologic basis for chronic pain, this
is of no benefit to the individual injured worker: “Although
sensitization of the peripheral and central nervous system
has been demonstrated repeatedly in basic neuroscience
research, there are currently no widely accepted methods
for determining whether the symptoms of an individual
with chronic pain can be ascribed to sensitization. Thus,
while the concept of sensitization is extremely important
to a conceptual understanding of chronic pain, there is
currently no systematic way to incorporate it into impairment
ratings.” Page 568
“The behavioral concept of CPS and the neurophysiologic
concept of peripheral or central nervous system sensitization
imply that pain and pain-related activity restrictions
may be dissociated from the biological insult to which
a person was exposed and from any measurable biological
dysfunction in that person's organs or body parts. Both
concepts thus challenge the assumed linkages among biological
insult, organ or body part dysfunction and ADL deficits
that are fundamental to the AMA rating system.”
Page 568
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“A
basic challenge for a system of rating pain-related impairment
is to incorporate the subjectivity associated with pain
into an impairment rating system whose fundamental premise
is that impairment assessment should be based on objective
findings. The inherent subjectivity of pain is incongruent
with the Guides' attempts to assess impairment on the
basis of objective measures of organ dysfunction, as it
requires that determinations of pain intensity and the
restrictions imposed by it must be largely based on patients'
reports.” Page 569
Read on to learn how the world’s biggest “impairment
rating system” – which is also based on objective
evidence – manages to integrate subjective complaints
into the determination process. |
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Table 18-3, page 575,
sets forth criteria for severe pain: “Pain is essentially
continuous, with intensity reaching 9-10/10 at its worst
Individual must either get help from others for many ADL
(eg, preparing food, dressing), modify them drastically
(eg, stop bathing), or spend an inordinate amount of time
accomplishing - them (eg, 2 hours to get out of bed and
dressed)
Individual demonstrates severe affective distress in relation
to his or her pain and communicates the perception that
the pain is completely out of control
Individual is receiving maximal- pharmacologic support
for his or her pain on an ongoing basis.
Physical examination is virtually impossible to perform
because individual is intolerant of many examination maneuvers
(eg, refuses to ambulate or to allow examiner to palpate
symptomatic area); a significant number of pain behaviors
are observed during the examination, and they appear to
be congruent with organ dysfunction.”
This poor soul gets a 3% impairment! But only if there
is some other ratable impairment in one of the earlier
chapters.
Is this the end of the rating process, or can the practitioner
develop a higher rating despite the limitations and defects
of the AMA Guides and the 2005 rating schedule?
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In evaluating disability, the Social Security Administration
relies on objective findings. There is a table of “Severe
Impairments” which qualify a worker for SSDI
assuming there is no “substantial
gainful activity.” At this point in the process,
the subjective factor of pain is considered:
“Symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness, will not be found to affect
an individual's ability to do basic work activities unless
the individual first establishes by objective medical
evidence (i.e., signs and laboratory findings) that he
or she has a medically determinable physical or mental
impairment(s) and that the impairment(s) could reasonably
be expected to produce the alleged symptom(s).”
[see link at right]
Like the AMA Guides-2005 “Schedule For Rating Permanent
Disabilities” there needs to be an objectively determined
impairment before pain can be considered. But at this
point the Social Security Administration, unlike the California
system, considers the effect of pain on employability:
“Because a determination whether an impairment(s)
is severe requires an assessment of the functionally limiting
effects of an impairment(s), symptom-related limitations
and restrictions must be considered at this step of the
sequential evaluation process, provided that the individual
has a medically determinable impairment(s) that could
reasonably be expected to produce the symptoms.”
SSR
96-3p
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Why
can’t the AMA Guides figure out how to determine
if pain is causing labor-disabling impairment? The Social
Security Administration has figured it out -- why can’t
California?
See how SSA
evaluates evidence and how
SSA evaluates pain.
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The Social Security
Administration also considers pain when assessing “residual
functional capacity (RFC).”
“Symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness, are the individual's own description
of the effects of a physical or mental impairment(s)…
Because symptoms sometimes suggest a greater severity
of impairment than can be shown by objective medical evidence
alone, careful consideration must be given to any available
information about symptoms.
The RFC assessment … must describe the relationship
between the medically determinable impairment(s) and the
conclusions regarding functioning which have been derived
from the evidence, and must include a discussion of why
reported daily activity limitations or restrictions are
or are not reasonably consistent with the medical and
other evidence.”
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In pre-SB 899 cases, pain and work restrictions were part
of the permanent disability rating schedule. Treating
physicians and forensic evaluators automatically provided
the necessary rating language, with little prodding from
attorneys. In cases under the 2005 schedule, the physician
report writers may or may not include pain assessments
and work restrictions. Even if they do, these descriptions
may not be of much use to the vocational expert you retain
to explore diminished future earning capacity (DFEC).
It is necessary to establish substantial medical evidence
(opinions given by treating or QME/AME doctors based on
reasonable medical probability, explaining the “how”
and “why.” See, e.g., Escobedo v. Marshalls
(2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc
opinion) concerning the work limitations necessitated
by pain or the treatment for pain. This can be done by
report or by deposition.
Many of the questions put to the doctors are long established
in Social Security practice. There are forms for obtaining
the necessary evidence that detail the limitations on
the claimant’s functioning. See, e.g., http://www.disabilitysecrets.com/rfc-physical.doc
If you plan to involve a vocational expert to establish
diminished future earning capacity (DFEC), see Robert
Hall’s article in this issue for what the expert
needs by way of medical evidence.
In the next issue we will provide suggestions that may
help you get beyond the paltry 3% pain add-on in the California
workers’ compensation system.
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need a detailed report like the Medical Source Statement
forms used in Social Security practice |
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Marjory Harris
began practicing law in 1974 as a defense attorney and
later became an applicant's attorney and a certified specialist.
She continues to represent injured workers in the San
Francisco Bay Area and Inland Empire and mentors attorneys
on big cases.
Reach Marjory at (888) 858-9882 or email to
MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com
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