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In Part
I of PD Pain Under SB 899 we
noted the near elimination of pain as a ratable factor
of permanent disability post-SB 899. This was accomplished
by 1) Labor Code 4660 (see sidebar) and 2) 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.).”In the last issue,
vocational expert Robert Hall discussed
the impact of pain on employability and future earning
capacity. He noted, “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.”
Hall’s emphasis was on evaluating the effect
of pain on earning capacity. But his approach
is also of assistance to the forensic evaluator,
whether Primary Treating Physician, Qualified
Medical Evaluator, or Agreed Medical Evaluator,
not just in determining return to work issues
and DFEC, but in arriving at the whole person
impairment [WPI] percentage.
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Labor
Code §4660, in
relevant part:
(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).
(2)
For purposes of this section, an employee's diminished
future earning capacity shall be a numeric formula based
on empirical data and findings that aggregate the average
percentage of long-term loss of income resulting from
each type of injury for similarly situated employees….This
schedule shall be available
for public inspection and, without formal introduction
in evidence, shall be prima facie evidence of the percentage
of permanent disability to be attributed to each injury
covered by the schedule. [Emphasis added] |
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Labor Code §4660 says the permanent disability
rating schedule is “prima facie evidence of the
percentage of permanent disability to be attributed
to each injury covered by the schedule.” En banc
decisions of the WCAB post-SB 899 have found that §4660
allows the parties to present rebuttal evidence to
a permanent disability rating under the new PDRS, including
vocational evidence [Costa I (71 Cal.Comp.Cases at
p. 1817) and Costa II (72 Cal.Comp.Cases at p. 1496)].
While Costa I and II concerned vocational evidence
on the issue of diminished future earning capacity
(DFEC), the more recent en banc decisions known as “Almaraz/Guzman” [see
sidebar] found that the AMA Guides were rebuttable: “The
Appeals Board held in substance that: (1) the American
Medical Association (AMA) Guides portion of the 2005
Schedule is rebuttable; (2) the AMA Guides portion
of the 2005 Schedule is rebutted by showing that an
impairment rating based on the AMA Guides would result
in a permanent disability award that would be inequitable,
disproportionate, and not a fair and accurate measure
of the employee’s permanent disability; and (3)
when an impairment rating based on the AMA Guides has
been rebutted, the WCAB may make an impairment determination
that considers medical opinions that are not based
or are only partially based on the AMA Guides.” (see
WCAB web site)
While these cases have been reopened for reconsideration
[“The Appeals Board granted reconsideration of
its prior en banc decision in order to allow further
briefing by the parties and to allow amicus curiae
briefing from other interested persons or entities
with regard to how the 2005 Permanent Disability Rating
Schedule may be rebutted.”], they have not been
vacated. At the time we go to press there are no final
decisions, yet it seems clear that the WCAB has opened
the door to the use of vocational evidence to rebut
the WPI itself, and not just the DFEC or FEC, as well
as allowing the forensic examiner to rely on other
parts of the Guides, other guidelines, or other methods
of determining impairment. In sum, the evaluator is
no longer restricted to the strict application of the
Guides’ tables, but can rely on the introductory
parts of the Guides which allow more leeway in determining
impairment.
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Mario
Almaraz, Applicant v. Environmental Recovery Services
(aka Enviroserve), State Compensation Insurance Fund,
Defendants Joyce Guzman, Applicant v. Milpitas Unified
School District, PSI, Keenan & Associates, Adjusting
Agent, Defendants (2009) 74 Cal. Comp. Cases
“Thus, the AMA Guides recognizes that an injured
employee’s impairment assessment is not necessarily
limited to an evaluation of an injured employee’s “anatomic
loss” (damage to an organ system or body structure)
or “functional loss” (a change in function
for an organ system or body structure) (see AMA Guides, § 1.2a,
at p. 4) via the framework of the Guides’ various
chapters. Instead, a physician may assess how the industrial
injury will affect the employee’s ability to return
to his or her job. Further, with respect to the broader
job market, other evidence may be appropriate – specifically
including the expert opinion of “vocational specialists.” Almaraz/Guzman,
page 17. |
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As we noted in Part I, 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). 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.” Since
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), it would seem that the evaluator could
now analogize to a cardiac impairment on the basis
that the severe sciatica is no less an impediment to
employability than severe angina.
Going beyond the
Guides, the evaluator can substitute the criteria for
Complex Regional Pain Syndromes (CRPS) established
by pain specialists’ professional organizations
for the absurdly restrictive criteria of the AMA Guides,
5th edition, found on page 496, for which there is
no scientific foundation or attribution. See the website
of the International
Research Foundation for RSD/CRPS for their attempts to get the AMA to respond to charges
that the AMA Guides’ criteria are unscientific.
“Pain is subjective. Its presence cannot be readily
validated or objectively measured.” This statement
from page 566 is apparently untrue and lacking scientific
support. Pain can be objectively measured in the individual
case. Just Google “objective measurement of pain” or
go to pubmed and search.
“The behavioral concept of CRPS 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. It is important to establish
from the evaluator that chronic pain may be a neurological,
rather than solely a behavioral disorder, and that
it is not under conscious control of the patient.
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| “Physicians
need to use their clinical judgment as to what constitutes
normal or expected pain in conditions that produce
widely variable amounts of pain…” AMA
Guides, page 566 |
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In part I, after
noting descriptions in Table 18-3, page 575, we asked, “Is
this [the 3% pain add-on] 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?"
Even before Almaraz/Guzman, some evaluators were evolving
other methods of rating impairment under the Guides,
by using ADLs or analogy [see sidebar article by Dr.
Feinberg, the Agreed Medical Evaluator in the Guzman
case].
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In Almaraz/Guzman, the Board discusses two Arizona cases
involving non-ratable pain. In Cassey
v. Industrial Commission (Ariz.App.
1987) 152 Ariz. 280 [731 P.2d 645], the injured worker “could
not return to work because of his chronic muscular pain,” a
condition not ratable under the AMA Guides.
The Arizona court opined that when the AMA Guides does “not
accurately assess a claimant’s
impairment because no objective observations are available, ‘sound
clinical judgment’ must be substituted in evaluating
permanent impairment.” (Cassey, 152 Ariz.
at pp. 281-282.) The Arizona Court of Appeals then said: “Impairment
is usually a question of medical fact, while loss of
earning capacity is a question of law. [Citation.] In
some cases, however, the claimant must establish the
disabling effect of the industrial injury in order to
establish a permanent impairment. … During the
first stage, the claimant meets his burden of proof … if
he shows that [there is impairment] caused by his industrial
injury and [that] results in his permanent inability
to return to his former work. [Citation.] Once this initial
burden has been met, claimant is then entitled to go
through the second stage, during which he must show that
the [impairment] resulted in lost earning capacity. The
claimant cannot be barred from proceeding to this second
stage by his failure to provide [an AMA Guides] rating
of impairment when none is applicable.”
The second pain case involved carpal tunnel syndrome with
residual post-surgical pain. “Although it was undisputed
that, after the surgeries, the employee had no permanent
impairment under the AMA Guides, the treating orthopedic
surgeon observed that she had residual pain and opined
that she had “permanent work restrictions which include
no lifting of more than 20 lbs. and no repetitive use of
her hands.” The physician also concluded that these
restrictions would preclude the employee from returning
to her secretarial job.” On appeal, the court found
there was ratable disability following the principles in
Cassey.
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First, to avoid claims of “subjectivity” some
key elements should be established:
1. A medical impairment
that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce
the pain or other symptoms alleged (e.g., fatigue).
2.
Objective medical evidence of pain or other symptoms
established by medically acceptable clinical or laboratory
techniques (e.g., deteriorating nerve or muscle tissue).
3. Evidence of the effect of pain on ADLs or work activities
and earning capacity. This could come from the worker,
if deemed credible by the evaluator, or the observations
of credible witnesses or a vocational expert, or a functional
capacity assessment by a physical therapist.
4. The effect
of treatment of pain should be considered (e.g., side
effects of pain medications, or relief of pain from other
treatment modalities)
If the evaluator is not able to
discuss the pain issues in a meaningful way, he or she
should be encouraged to defer to a pain specialist (see
questions below).
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Objective
evidence of pain
may include reports from a functional
restoration program or a functional capacity evaluation
[FCE] |
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Borrowing language from Social Security law, one could
ask the evaluator, “Are there medical signs and
findings, established by medically acceptable clinical
or laboratory diagnostic techniques, which show the existence
of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence
required to be furnished under this paragraph (including
statements of the individual or his physician as to the
intensity and persistence of such pain or other symptoms
which may reasonably be accepted as consistent with the
medical signs and findings), would lead to a conclusion
that the individual is under a disability?” Objective
medical evidence of pain or other symptoms can be established
by medically acceptable clinical or laboratory techniques
(for example, deteriorating nerve or muscle tissue).
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Do you treat pain in your medical practice?
Is this patient credible?
Are his/her reports of pain consistent with your experience
of pain resulting from the diagnosed condition?
Would you restrict this patient from activities that
provoke the pain reported?
Is the pain in itself harmful? That is, does it produce
any deleterious effects in and of itself, separate from
any bodily harm that the painful activity may produce?
For example, does suffering pain needlessly increase
the likelihood of acquiring a pain syndrome? (see data
on untreated pain putting patient at risk for pain syndrome)
Does the pain produce stress hormones or other deleterious
chemicals in the body, which may make the patient susceptible
to other diseases?
What are the psychological effects of the pain induced
by the activities?
If the patient has to take pain medications in order
to engage in these activities, what are the potential
risks of these medications? (have list on hand)
The goal is to get the evaluator to refer to a pain specialist
or get substantial medical evidence of limitations due
to pain, so WPI and/or DFEC can be based on pain beyond
the 3% allowed by the Guides.
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From a letter to an AME:
“Please also note any
and all disabilities caused by the treatment for the
injury, such as reactions to pain medications (daytime
fatigue, cognitive impairment, etc.)
4. In addition to
his orthopedic complaints, Mr. IW appears to be suffering
emotional and cognitive effects of the industrial injury
to his back and its treatment, as well as sleep disturbance
due to pain. Do you defer opinion on these problems to
the Primary Treating Physician, [Name], M.D., who is
Board-certified in pain medicine as well as psychiatry?“
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1. Is Mr. IW suffering from a pain disorder?
2. If he
had not had the industrial injury of 1995 and the resulting
treatments, can you say with reasonable medical probability
that Mr. IW today would have a pain disorder?
3. Is Mr.
IW now suffering from any side effects of the medications
he has been taking for the industrial injuries?
4. Would
you anticipate that if Mr. IW continues to take these
medications, he might suffer from side effects or long-term
consequences?
5. Taking into consideration the work restrictions
related to the orthopedic conditions, as outlined in
the May 2007 report of the agreed medical evaluator,
Dr. [Name], any psychological factors you have noted,
any pain disorder you have noted, and any effects of
the pain medications you have noted, can you say with
reasonable medical probability that Mr. IW would be able
to reliably and consistently maintain a regular full
time work schedule?
6. What are your recommendations
for future medical care of Mr. IW's work-related pain
disorder?
7. Based on your experience treating patients
with spinal disorders and other orthopedic problems,
and on your knowledge of peer-reviewed scientific studies,
can you say with reasonable medical probability that
Mr. IW would suffer from disabling pain from spinal stenosis
if he had not had the work injury of 1995 and the subsequent
treatment and loss of physical activity due to the injury
and treatment?
8. Taking into account Mr. IW's physical
and emotional condition as a result of his work injury,
do you think he is capable of full time work?
9. Do you
think Mr. IW would be able to reliably and consistently
report to work for a full work week?
10. Would there
be days when, as a result of his industrially caused
problems, he would not be able to work?
11. Is there
any way to predict in advance what days the industrial
injury or treatment for the injury would prevent him
from being able to work?
12. As a result of his industrial
injury or the treatment for that injury, would he need
to take breaks at will when his symptoms flare up?
13.
As a result of his industrial injury or treatment for
that injury, would he need to stop working and rest?
14. Is there any way to predict in advance the frequency
of the breaks and the length of the breaks that might
be required as a result of the industrial injury or treatment
for the injury?
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“It
appears likely, for example, that an AMA Guides rating
will be deemed to have been rebutted where the employee’s
injury has no permanent effect on his or her “activities
of daily living” or it is simply not covered by
the Guides – thereby resulting in no ratable AMA
Guides impairment – but the injury seriously impacts
the employee’s ability to perform his or her usual
occupation and, therefore, significantly affects his
or her future earning capacity.”
Almaraz/Guzman at page 43. |
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Do not assume the evaluator will know what other method
might be appropriate should he or she determine that
an impairment rating based on the AMA Guides would be
inequitable, disproportionate, and not a fair and accurate
measure of the employee’s permanent disability.
Instead, propose alternative methods by asking, “Would
it be reasonable to consider….?” Set forth
the facts (see “key elements” above) that
establish that pain from the medical condition caused
by the work injury or its treatment has caused impairment
in ADLs and/or earning capacity. Then set out some reasonable
methods (see Feinberg article in sidebar, research other
chapters, editions of the Guides, other Guides, etc.).
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We do not know if the Board will retrench from its position
in Almaraz/Guzman. No one seems to know if/when the new
PDRS will become law. Section 4660 mandated a new rating
schedule: “(c) The administrative director shall
amend the schedule for the determination of the percentage
of permanent disability in accordance with this section
at least once every five years.” The legislature’s
bills to increase the paltry permanent disability benefits
were vetoed three years in a row by a governor who is
asking that Almaraz/Guzman be reversed, although it is
his stymying the new PDRS and vetoing the bills that
has caused so much dissatisfaction with the rating system
seemingly in all quarters other than the Administration
and Chamber of Commerce.
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| On
10/12/07, in a press release entitled “Governor
Schwarzenegger Vetoes Job-Killing Legislation”, the
Governor vetoed a permanent disability increase stating: “I
am directing the Administrative Director of the Division
of Workers’ Compensation to finalize her review of
the new schedule and commence rulemaking as soon as possible
to make any changes deemed necessary.” A year and
a half later, no new PDRS and no word on when it will issue. |
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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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