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Pain Reform?

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.

 
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]

Rebutting the Schedule = Rebutting the
AMA Guides?


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.

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.

Pain Under AMA Guides & Effect of Almaraz/Guzman

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.


“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

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].


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.

Pain Cases in Almaraz/Guzman

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.

 

Suggested lines of questioning

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).


Objective evidence of pain
may include reports from a functional restoration program or a functional capacity evaluation [FCE]

Establishing Basis of Pain

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).


How Social Security
Evaluates Pain

General Pain Questions

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.

 

Deferring and referring to pain specialist

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?“

 

Establishing loss of earning capacity due to pain

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?


“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.

Suggesting other approaches to determining WPI

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.).

 

Some parting thoughts

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.


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.

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




 

> Five Facts About Psych Injuries
> People Who Made a Difference
> Work Impairment & Disability
> Computer Corner: More Productive
> PD Pain Under SB 899, Part II
PD Pain Under SB 899, Part II
by Marjory Harris, Esq.

In Part II of the 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.