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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you
can't find in practice guides
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Profiles of people who changed workers’
compensation law.
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• Warren
Schneider
• Marjory Harris
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Assessment of disability,
which includes the impact of medical impairment on future
earnings capacity, is complicated where multiple impairments
exist. These multiple impairments can be pre-existing
or new. In a recent Med-Legal Report article in CAAAments,
June 2008, entitled Combined
Value Chart v. Multiple Disability Table written
by Art Johnson, Esq., he discussed differences in the
way multiple impairments are treated in the current vs.
old PDRS and in the AMA Guides. The AMA Guides to the
Evaluation of Permanent Impairment, 5th Edition (AMA,
2005) provides a methodology which will “ensure
that regardless of the number of impairments, the summary
value would not exceed 100% of the whole person (p. 9).”
Of particular relevance to this present article are Mr.
Johnson’s comments regarding the use of vocational
evidence to address what he terms the “additive”
or “synergistic” effect of multiple impairments
on disability and earning capacity. In his article, Johnson
wrote:
“…Use
vocational evidence to prove what we used to prove
under paragraph 6 of the MDT (Multiple Disabilities
Table), that the complete picture of combined multiple
disabilities and the complete picture of loss of
earning capacity, produces a rating that is greater
than produced by the Combined Value chart. Have
the vocational expert testify that he is not rebutting
the AMA Guides Impairment formulation, by [sic]
only the compressive effect of the combined value
chart and that in actual fact there is no compressive
effect to the combined "impairments" when
they are translated into combined "disability".
…..The latest evidence from the administrative
director is that the disabilities with the lowest
return to work rates are those where there are multiple
disabilities involve two or more body parts. Since
the new rating schedule is fundamentally based now
on the standard of "diminished future earning
capacity", if the empirical studies by the
administrative director actually show that combined
disabilities have a synergistic effect on a person's
loss of ability to work and cause a greater diminished
future earning capacity than simply adding the disabilities,
then it would behoove us to use the administrative
director's own studies to show that combined ratings
should not be compressed under the CVC, but they
should be added, or they should be combined in a
synergistic effect. |
By way of review, per SB 899, the Schedule for Rating
Permanent Disabilities (California Division of Workers'
Compensation, 2005) was developed as required by Labor
Code section 4660. The Schedule includes an adjustment
for diminished future earning capacity (DFEC) that is
designed to increase the permanent disability rating because
of diminished future earning capacity caused by the work
injury. The existing DFEC adjustment factor varies from
10% to 40% according to injury category with the lowest
adjustment factor being applied to hand, finger, and vision
injuries having the lowest adjustments and the highest
adjustment being applied to hearing and psychiatric impairments.
The Schedule is currently under review with modifications
to the DFEC factors having recently been proposed by the
DWC.
This author has published two prior papers on his SEDEC
diminished future earnings capacity methodology: “Determining
Diminished Earning Capacity in the California Workers'
Compensation Program: The "SEDEC" Method,”
and "New"
Role for Vocational Rehabilitation in the California Workers'
Compensation System: A Comprehensive Vocational Rehabilitiation
Evaluation.” This article proposes that a natural
extension of the SEDEC methodology can provide the vocational
and earnings capacity analysis of multiple impairments
suggested by Mr. Johnson in his article.
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For Dr. Hall’s
article, “The New PDRS and the Determination of
DFEC,”
click
here.
For Dr. Hall’s article, “Determining Diminished
Earning Capacity in the
California Workers'
Compensation 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.
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The Need to Distinguish Between
Impairment, Functional Capacity, and Disability
Absolutely
critical to the analysis of multiple impairments in relationship
to DFEC is the role of functional capacities. Without
translation of medical impairments into statements of
functional capacities, the “additive” or “synergistic”
effect of multiple impairments, as discussed by Johnson,
cannot be determined, at least as to how they might impact
employability and future earnings capacity.
As is now well understood, SB 899 mandated use of the
.A.M.A. Guides to the Evaluation of Permanent Impairment,
5th Edition. As discussed in the Guides, they cannot be
used to make direct estimates of “work disability”,
but are intended for more general use as an estimate of
“whole person impairment” and an “individual’s
overall ability to perform activities of daily living”.
The Guides do describe a process for determining functional
limitations or “work restrictions”, i.e. what
a worker can and cannot do and how activity might aggravate
the medical condition.
Obtaining credible opinions regarding functional capacity
as a basis for DFEC opinions is challenging. Multiple
opinions often exist from various doctors, provided at
different times, and often somewhat dated. Functional
capacity testing can be conducted as a useful tool, but
there are questions regarding reliability and validity
that need to be considered in their use and should probably
be conducted as part of a physician’s evaluation,
not as a standalone tool.
Issues involved with determining residual functional capacity
(RFC) are discussed in an excellent article entitled Impairment
Rating and Disability Determination by Edward
B Holmes, MD, MPH. In this article, Dr. Holmes states
the following:
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“How does the physician evaluating
functional ability determine which recommendation
to follow? In this process, the evaluating physician
reviews all the information regarding credibility
listed above and then compares that information
with the opinions of other physicians in the file.
Other sources of opinion might include evidence
from chiropractors, physical therapists, optometrists,
and other medical professionals. Such sources
can be valuable in determining the true extent
of limitations and can thereby assist in the overall
credibility determination.
In general, when differing opinions about function
are in the file, the opinion that is the most
consistent with the evidence should be the one
that is given the greatest amount of consideration.
Other factors to consider when determining which
source opinion to support include the following:
Examining sources – The opinions of practitioners
who have examined the patient are given greater
weight than the opinions of those who have not
(e.g., insurance company file reviews).
Treating sources rather than providers of 1-time
examinations - In general, a medical provider
with a long-standing relationship may be more
familiar with the patient's limitations than
would a consultant who has seen the patient
once.
Supporting evidence – A source that provides
supporting evidence to substantiate the opinion
about functional ability should be given more
weight than should a source that does not have
supporting evidence.
Consistency with the record - Obviously, opinions
most consistent with the preponderance of evidence
are given greater weight.
Medical specialty – The opinion of a specialist
in the field may be given greater weight than
would that of a generalist, even if the length
of treatment by the specialist was much less.
Furthermore, the opinion of a physician who
is more familiar with the demands and tasks
in the workplace is likely to be given greater
weight than would the opinion of a physician
who is unaware of such demands.
Many sources write opinions, such as light
duty, moderate lifting, or sedentary work. These
generalized, nonspecific statements of functional
ability are inherently unreliable and meaningless
in making appropriate ability statements. The
definition of light work or sedentary work is
not consistent among physicians. Further confusion
can come when a treating physician writes a note
in the file stating the patient is disabled. No
specific level of impairment that is known by
all physicians is equated with the term "disabled."
To one physician, a patient's inability to lift
more than 50 lb may suggest a disability. To another
examining physician, this same patient may be
regarded as capable of performing the essential
functions of his/her current job.
The important thing to remember is that the opinion
of the physician who knows the patient best and
who has the most knowledge about the specific
limiting condition should be carefully considered
in a functional evaluation and should be integrated
with an understanding of the claimant's work environment.
If the treating physician makes a generalization
regarding the patient's functional ability, further
contact with the physician may be required to
clarify the patient's specific functional restrictions
and true residual capacity. The relative weight
to be given to various factors should be addressed
in the report, giving the specific reasons why
more consideration was given to one opinion over
another.
The experienced clinician can make the appropriate
objective medical assessment of the patient and
then consider all of the factors of credibility,
weigh the source opinions, and make a final determination
of the patient's functional ability”.
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The
A.M.A. Guides and the A.M.A.’s Disability
Evaluation, 2nd Edition identify the larger
issues surrounding determination of “disability”
and “earning capacity”.
These factors are listed as follows:
• an individual’s age, education, acquired
skills, knowledge, and work performance;
• an individual’s motivation and adaptation
to change;
• work requirements;
• work environment;
• state of the job market;
• local economic conditions;
• past earnings and future potential earnings.
I propose that this list be expanded to include
RFC determination, including RFC as would relate
to prior or pre-existing medical impairments and
their impacts on an individual’s ability to
work. |
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propose that this list be expanded to include RFC determination,
including RFC as would relate to prior or pre-existing
medical impairments and their impacts on an individual’s
ability to work. |
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Disability Data
| There exists for persons
with multiple disabling impairments a combined,
interactive effect that negatively impacts employment
rates. In his article, Johnson discusses the DWC research.
[Return-to-Work Rates for Injured Workers with Permanent
Disability (January, 2007) Division of Workers’
Compensation, State of California] showing that persons
with multiple impairments suffer greater impact with regard
to return-to-work outcomes (DWC, 2007). Other disability
and employment research from the U.S. Bureau of the Census
generally supports this concept. In the Census data, persons
with disability in one domain, either physical, mental,
or communication, have average employment rates of 61.3%,
persons with disabilities in two domains, 51.5%, and persons
with disabilities in all three domains have employment
rates of 31.8% . [Steinmetz, Erica, J. (2002). Americans
with Disabilities: 2002. U.S. Census Bureau.] |
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Strategies for Dealing with
Multiple Impairments
and DFEC Analysis
| As stated in prior papers by this author,
per the A.M.A., the role of the “Vocational Rehabilitationist”
consultant (VRC) is to “bridge the gap” between
“work limitations” and “disability”
as reflected in diminished employability and earning capacity.
In order to form opinions regarding employability and
diminished future earning capacity, the VRC must sequentially
evaluate an individual in terms of what they can offer
a potential employer. Readers can refer to this author’s
prior articles regarding the overall comprehensive vocational
evaluation process as it relates to DFEC. However, in
summary, the determination of DFEC requires a VRC who
can carefully evaluate the residual impact of mental and/or
physical work limitations upon an individual’s ability
to utilize their global skills and abilities and perform
specific occupations and work tasks in a specific labor
market. A comprehensive vocational rehabilitation evaluation
is required to do this. |
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To appropriately address the multiple impairments issue,
a truly sequential or “layered” analysis
is required. For example, a Roofer with a back injury
may have a “no heavy work” restriction that
can be analyzed in a straightforward manner through
transferable skills analysis (TSA) to determine other
forms of work they could potentially perform. However,
if this worker had also been hit in the head in their
accident and now has residual balance and memory problems,
the DFEC analysis takes quite a different turn. Logically,
workers who are already limited physically in strength,
range of motion, and stamina (typical for a back injury)
who also have balance and memory issues (typical of
a head injury) have greater restrictions on the type
and nature of work they can perform, i.e. reduced employability.
Analysis of the above worker’s situation can be
hypothetically analyzed as follows:
- Analyze the worker with the back injury residuals
alone;
- Analyze the worker with the head injury residuals
alone;
- Analyze the worker with the combined effects of
both the back injury and the head injury.
The result of this kind of “step by step”
analysis for a Roofer would yield fairly dramatic results,
both with regard to employability as well as earning
capacity. Roofers typically have limited formal education
and other skills and, if physically limited to “light
work” type occupations, suffer substantial loss
of employability and earnings, at least in the short
term, but could largely reestablish their earning capacity
over time assuming they can acquire new skills in a
lighter occupation, such as Truck Driver. However, assuming
that head injury residuals exist impacting memory, concentration,
new learning, and stamina (all occupationally researchable)
the effect on employment and earnings potential is magnified,
both by the additional barriers/limitations posed by
the head injury residuals, but also the combined and
interactive effects of the physical and cognitive limitations.
The above kind of analyses can be objectively conducted
with computerized occupational information systems that
use standardized government data, empirically derived,
that describe the demands of occupations. Systems based
upon the old Dictionary of Occupational Titles (over
12,000 occupations) break occupations down by over 60
factors. The most current database available, the O*NET,
analyzes fewer than 1,000 broad occupational groups,
but analyzes them on over 250 factors and is especially
helpful for analyzing the cognitive, behavioral, and
environmental characteristics of occupations.
Issues
Do these combined work limitations always translate
into reductions in earning capacity? This is often the
case, but not always. It really depends upon the individual’s
residual functional capacities, their employment skill
set, and the relative demand for those skills. Substitute
“Network Administrator” (who has received
the same injuries in a work-related car accident) for
the “Roofer” above and you can see that
it is not quite so clear what the impact of work impairment
on employability and future earnings capacity might
be.
Another issue has to do with the consideration of pre-existing
medical issues and impairments. A discussion of the
legal issues around apportionment to pre-existing medical
issues is beyond the scope of this article, but pre-existing
impairment can obviously impact opinions regarding RFC,
employability, and earning capacity. The above type
of analysis can be conducted (and are routinely conducted
in other jurisdictions such as in personal injury cases)
to parse out the impact of pre-existing impairments
on employability and earnings capacity issues.
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| To
appropriately address the multiple impairments issue,
a truly sequential or “layered” analysis is
required. |
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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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