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In a prior article entitled “The “New” Role for
Vocational Rehabilitation in the California Workers’
Compensation System: A Comprehensive Vocational
Rehabilitation Evaluation
,” I discussed a multi-step
vocational evaluation to deal with issues of return to
work, the retraining voucher, and determination of lost earning capacity. With the WCAB’s recent en banc decisions in the Almaraz/Guzman and Ogilvie, it seems relevant to revisit the role of Vocational Rehabilitation providers and experts as to how they can best be utilized to facilitate resolution of workers’ compensation cases.


The Almaraz/Guzman Decision Regarding Impairment Rating

By way of review, in Almaraz/Guzman the following was determined:

  • the AMA Guides portion of the 2005 schedule is rebuttable and not conclusive;
  • The Labor Code requires that the AMA Guides be considered but does not make the AMA Guides determinative in assessing an injured employee's impairment;
  • the AMA Guides does not measure work impairment and actually excludes work from the activities of daily living considered;
  • the AMA Guides are just a “first step” in determining work impairment; information and evidence outside of the Guides may be considered, including the impact of the medical condition regarding the performance of work activities;
  • the evaluating physician, utilizing their own judgment, can modify an impairment rating
  • The AMA Guides do NOT measure work impairment, but do address the impact of impairment on other activities of daily living.

Specific to the role of Vocational Rehabilitation experts, in Almaraz/Guzman the Commissioners had the following to say:

“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” (p.17).

For Robert Hall’s article,
“Pain Disorders and their Impact on Employability and Future Earning Capacity,”
click here

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

The Ogilvie Decision Regarding Diminished Future Earning Capacity (DFEC)

With regard to Ogilvie, the WCAB decision stated:

“The Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC) portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 – including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule…shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the DFEC portion of the schedule can be rebutted”.

Ogilvie lays out a step-by-step method for determining whether the PDRS is rebutted on a particular case. I will not go into this formula in detail, but it can be reviewed in the Ogilvie decision [see Ogilvie v. City and County of San Francisco.]

  • Establish the injured employee’s individualized proportional earnings loss. The four-step process provided is detailed and includes a wage earning analysis for “similarly situated” employees;
  • Divide the employee’s standard Whole Person Impairment Rating by his or her proportional earnings loss to calculate an individualized ratio of rating over proportional earnings loss;
  • Determine whether an injured employee’s individualized ratio of rating over proportional earnings loss rebuts the DFEC portion of the 2005 Schedule.
 

Impairment and Disability Determination –
Who Does What?


As is often stated, but seems to be commonly misunderstood, “impairment” and “disability” are two different things. One way of looking at it is that “impairment” is about the person, the impact of injury or illness, a medical condition, on the bodily systems and the ability to perform various activities, sometimes called functional capacities. Where “impairment” is about the person “disability” is about the interaction of the impairment with an environment, which could be home, community, or work environments, Depending on the demands of these environments, a specific medical condition or “impairment” might be disabling or not. Logically, this is why a person with functional limitations with regard to lifting, carrying, and overhead reaching can be significantly disabled with regard to their “activities of daily living” but, because they are an Accountant, much less impacted at work.

Of most relevance to these discussions are the publications of the American Medical Association (AMA), since the Labor Code is clear that AMA “impairment” rating is the start of the process in determining “disability.” SB 899 mandated use of the AMA 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).

The AMA Guides and the AMA’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.
Thus, per the AMA, the role of the “Vocational Rehabilitationist” 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 earning capacity, the Vocational Rehabilitationist must sequentially evaluate an individual in terms of what they can offer a potential employer. In the above cited article regarding “The “New” Role for Vocational Rehabilitation” I also listed the steps that a comprehensive vocational rehabilitation evaluation would consist of.

For more information on these concepts of person and environment, interested readers can also research the publications of the World Health Organization.

With consideration of the Almaraz/Guzman and Ogilvie decisions, the following model is proposed to help articulate the needed steps to determine work impairment, disability, and diminished earning capacity:
 
 
Evaluation Need Description Determined By
Pathology Herniated Disc in Low Back Medical Exam & Tests
1) Impairment Pain, Muscle Spasms, Weakness, Fatigue Medical Exam & Tests
2) Functional Limitation No lift/carry > 20 lbs., No repetitive bend/twist No stand or sit > 4 hrs in 8 hr day Physician Opinion and/or Functional Capacity Evaluation
3) Work Impairment Impact of functional limitations on job specific work tasks & activities Analysis of impact of the impairment(s) on a single occupation or a broad class of occupations.
4) Work Disability Loss of employability & labor market access Employability and Labor Market Studies
5) Diminished Earning Capacity Loss of earning capacity over time Earning Capacity Study Ogilvie Analysis

In this above model, physicians and/or allied health care practitioners providing functional capacity evaluations, perform “impairment” related steps 1, 2, and 3. For step #3, additional information from the outside will likely be needed, such as job analyses, essential function descriptions, and more generic descriptions of the demands of a “class of jobs”, such as “clerical/administrative positions”. Vocational rehabilitation experts can provide these types of documents for medical review and opinion as to what degree the person is impaired from these types of single job or “class of job” work activities.

Additionally, determination of the “future earning capacity” of a work-impaired person is a reasonably complicated matter. Issues such as the competiveness of a person’s skills and education, labor force participation rates, and disability statistics should be a part of this analysis. Per Ogilvie, when injured workers have limited or non-existent earnings following injury, an “earnings capacity” study must be conducted. Anything short of this will not provide valid or reliable earnings capacity estimates as is required in this legal setting. Only professionals who are properly trained at the graduate level and are experienced in vocational evaluation and job placement of persons with disabilities have adequate background for providing defensible expert reports and testimony on reasonably complicated issues such as these.

Summary

In summary, Vocational Rehabilitation experts are a resource that can be utilized to help “bridge the gap” between “impairment” and disability” determinations. For obvious cost and efficiency considerations, it will be tempting to try and short-circuit this process, asking physicians to step out of their arena and address work-related issues. It can be anticipated that this approach will fall short in many ways. Instead, over time it will likely prove more productive to explore innovative and cost-effective ways to include information from vocational rehabilitation experts in these determination processes.


 

About the Author:

Dr. Robert Hall has worked in the vocational evaluation and rehabilitation field since 1973 and has maintained his own consulting practice in San Diego since 1980. Dr. Hall frequently serves as an expert witness on personal injury, employment law, and spousal support cases. Dr. Hall has a Ph.D. in Human Rehabilitation from the University of Northern Colorado. Since 1994, he has been the Director of the Work & Health Technologies Center at San Diego State University and is an Adjunct Professor in SDSU’s graduate Rehabilitation Counseling Program.


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.


 

> Five Facts About Psych Injuries
> People Who Made a Difference
> Work Impairment & Disability
> Computer Corner: More Productive
> PD Pain Under SB 899, Part II
Work Impairment and Disability:
How Should Vocational
Rehabilitation Providers be Utilized
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].