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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.

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

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.

For the role of pain in Social Security decisions, click here.

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/

For a detailed CV,
click here.


 

> Doctor's Office: Functional
Restoration
> People Who Made a Difference
> Pain Disorders & DFEC
> Defense Perspective: Surviving
> Chapman on Structured Settlements
> PD Pain Under SB 899
Pain Disorders and their
Impact on Employability and
Future Earning Capacity
by Robert Hall, Ph.D., CRC, CDMS

Robert B.Hall, Ph.D., is a vocational
rehabilitation professional, consultant, and
teacher who created the “SEDEC” method of
analyzing diminished future earning capacity [DFEC].