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Pain Reform?

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.”



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.


“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

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
“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.

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?

Chapter 18’s instructions for rating pain are tedious and time consuming. Like the elephant that gave birth to a mouse, all that analysis yields a maximum WPI of 3%.

For a physician’s view on ways to rate, see AMA Guides 5th Edition: Achieving a Medically Reasonable Impairment Rating by Steven D. Feinberg, M.D.

Lessons from Social Security Law

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

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.

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.”

“Pain or other symptoms may cause a limitation of function beyond that which can be determined on the basis of the anatomical, physiological or psychological abnormalities considered alone; e.g., someone with a low back disorder may be fully capable of the physical demands consistent with those of sustained medium work activity, but another person with the same disorder, because of pain, may not be capable of more than the physical demands consistent with those of light work activity on a sustained basis.”

Pain and Work Restrictions pre-SB 899

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.

You need a detailed report like the Medical Source Statement forms used in Social Security practice

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


 

 

> 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
PD Pain Under SB 899
By Marjory Harris, Esq.

Fifth in a series of editorials on “Workers’
Compensation Disabled: What Went Wrong
on the Road to Reform?” we explore the
attempt to eliminate pain from the permanent
disability rating system.