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

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

People Who Made A Difference
Profiles of people who changed workers’ compensation law.

• The Honorable Mervin N. Glow
• Jettie Pierce Selvig, Esq
• Barry J. Williams, Esq.
• Melissa C. Brown, Esq.
• William A. Herreras, Esq.

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Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris


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HARRIS: While the AMA Guides state they are not
to be used for the evaluation of work-related
disability, it appears that it is their primary use
throughout the United States and some other
English-speaking countries. How do we use the
Guides so that they bear a relation to work-related
disability? Or, put another way, how do we take the
medical determination of impairment and arrive at
the legal determination of disability?


RONDEAU: That seems like it should be a fairly
simple question to answer but, in fact, it's not. As the
Guides states, impairment is the alteration of a body
part or system from its normal, healthy function.
This is a medical determination. Disability, on the
other hand, is an alteration in a person's ability to
engage in the entire range of their life activities due
to the interaction between an impairment and the
requirements of those activities. This is a legal
determination. This distinction points up perhaps the
most essential of many paradoxes which the Guides
presents. Many conditions which result in
considerable disability will receive a very low or even
a zero impairment rating under the Guides, while some conditions which result in no perceptible
disability at all will receive a relatively high
impairment rating.

The direct answer to your question, to the extent that
I can provide one, is that how an impairment rating is
translated into a disability rating will depend upon
the facts of a particular case and upon developments
in post-SB 899 caselaw. The most direct approach --
and the one which almost certainly will be used in
most cases -- is to "plug" the impairment rating into
the applicable rating formula prescribed by the
present Permanent Disability Rating Schedule.
However, following the Costa decision, in certain
cases the applicant attorney may opt to "prove up"
the percentage of future earning capacity loss
through expert testimony, thereby rendering the impairment rating largely irrelevant. This practice
may well become largely "extinct" if, as it appears,
the Legislature passes and the Governor signs a
bill this year increasing permanent disability benefits.


 

Labor Code §4660(b) requires that 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)."

Costa v. Hardy Diagnostics, 71 Cal. Comp. Cases. 1797 (W.C.A.B. 2006): In this en banc decision filed December 7, 2006, the Workers' Compensation Appeals Board held, inter alia, that Labor Code §4660, as amended by SB 899, allowed parties to present rebuttal evidence to the 2005 permanent disability rating schedule and that defendants could be ordered to reimburse reasonable costs of applicant’s vocational expert, even if the WCJ does not rely on the expert’s opinion.

HARRIS: The defense bar appears to have a very
narrow focus on the AMA Guides, looking only at
the individual impairments as listed in the various
tables and ignoring the mandates of the opening
chapters, which require analysis of ADLs,
vocational assessments, and the like. What has
been your experience with this?


RONDEAU: My experience thus far has been that
most defense counsel, as well as most adjusters
for that matter, are doing just as you suggest. They
are focused almost exclusively upon the tables and
accompanying discussions in the Guides which
relate to the primary injury and few have even a
passing acquaintance with Chapters 1 and 2. As a
consequence, they are generally ill-equipped to deal
with situations where the physician assigns anything
other than the most conservative impairment rating.


 
 

HARRIS: We have seen some reports with zero
ratings that also contain work restrictions. Are
there really any zero ratings when someone has
work disability?


RONDEAU: It would be truly hard to conceive of that
possibility. It is important to understand what a zero
percent impairment means. The Guides states:
"A 0% whole person (WP) impairment is assigned
to an individual with an impairment if the impairment
has no significant organ or body system functional
consequences and does not limit the performance
of the common activities of daily living...." (Chapter 1,
page 5) Therefore, by definition a condition which
significantly alters the function of a body part or
system OR which affects activities of daily living
should NOT be given 0% WPI rating. If the examining
physician has determined it necessary to impose
work restrictions as a result of the injury, then one
must assume that the injury has either significantly
altered the affected body part or system and, most
likely, has had some effect on activities of daily living.
If either or both are true, then a zero percent
impairment would be inappropriate.


 
If the examining physician has determined it necessary to impose work restrictions as a result of the injury, then one must assume that the injury has either significantly altered the affected body part or system and, most likely, has had some effect on activities of daily living. If either or both are true, then a zero percent impairment would be inappropriate.

HARRIS: The Guides treat some conditions, such
as erectile dysfunction, as more important then
severe sciatica from a herniated disc. While the
latter has a major impact on work ability, ED would
not have any appreciable impact on work ability.
How do we deal with these disparities?


RONDEAU: Your question speaks to one of the most
confounding problems with using the Guides in a
workers' compensation setting. Keep in mind the
impairment/disability distinction we touched on
previously. An impairment rating is, simply, a
determination of the alteration of a body part or
system from its normal function. Impairment is
measured in terms of the effect of the injury or
condition on activities of daily living, or "ADLs".
Table 1-2 sets forth the basic list of ADLs used for
measuring impairment under the Guides. They
include activities such as using the toilet, eating,
having sex and sleeping. It is for this reason that
the workers' compensation system is now more
concerned with what's going on in an injured
worker's bedroom or bathroom than with what's
happening on the job.


 

HARRIS: How do we get a doctor to "rate by
analogy," which is allowed by the Guides?


RONDEAU: Many ill-informed individuals with little
knowledge or experience in applying the Guides
are fond of claiming that if the Guides do not provide
a method for rating impairment due to a particular
condition, that condition is unratable. This is patently
wrong. Provided that the nature of the condition can
be adequately described, an impairment rating can
be assigned by analogizing to a condition which is
specifically ratable under the Guides. Other states
using the Guides have a well-established
jurisprudence of so-called "rating by analogy".

The Guides states: "Given the range, evolution, and
discovery of new medical conditions, the Guides
cannot provide an impairment rating for all
impairments….In situations where impairment
ratings are not provided, the Guides suggests that
physicians use clinical judgment, comparing
measurable impairment resulting from the unlisted
condition to measurable impairment resulting from
similar conditions with similar impairment of
function in performing activities of daily living."
(Chapter 1, p. 11). As just one illustration, in a
Vermont case plantar fasciitis was rated by
analogizing to the table used for rating lower
extremity peripheral vascular disorders. The
challenges, however, in getting a physician to rate
by analogy are considerable. First, the attorney
must be thoroughly familiar with the condition and
its functional consequences, as well as the
impairment rating tables for conditions to which
an analogy may properly be made. This is difficult
enough. Then, one has to overcome most
physicians' generally conservative nature and
frequent lack of intellectual flexibility.

 
Provided that the nature of the condition can be adequately described, an impairment rating can be assigned by analogizing to a condition which is specifically ratable under the Guides. Other states using the Guides have a well-established jurisprudence of so-called "rating by analogy".

HARRIS: The defense bar talks about "add-ons"
when we ask for impairment ratings on other
conditions which we believe result from the work
injury or its treatment. How should we respond
to that?


RONDEAU: As lawyers understand perhaps better
than any other group of people, language is
everything. The words that a person uses to frame
a discussion is often outcome-determinative.
Defendants refer to secondary conditions as
"add-ons" to convey the notion that these conditions
are being alleged solely for the purpose of inflating
the disability rating in the case. What they fail to
understand (or admit) is that identifying and rating
all impairments which result from an injury is
precisely what whole person impairment rating
under the Guides is about.

 
 

HARRIS: Activities of Daily Living, or "ADLs," are
frequently mentioned in the Guides. How do ADLs
relate to the rating process?


RONDEAU: As with many concepts in the Guides,
there are differing opinions as to the role that ADLs
play in the impairment rating process. More
doctrinaire individuals believe that the relative effects
of an injury on ADLs serves only to allow a physician
to select an impairment rating where a range of
percentages is possible. In their opinion, the
conventional impairment percentages provided for
in the Guides adequately take ADL effect into
account. On the other hand, others believe that ADL
effect must be considered to determine whether the
conventional impairment rating in a particular
instance truly reflects the whole person impairment.
If not, they suggest that the conventional impairment
rating should be rejected and that the impairment
rating be derived directly from the effect on ADLs.


 



HARRIS: Is there any way to translate the impaired
ADLs into a WPI?


RONDEAU: Yes, although this methodology has to
be tested in California, the concept of deriving an
impairment percentage directly from the effects on
an injury or condition on ADLs is fairly straight-
forward, particularly when an extremity is involved.
The Guides provide whole person impairment
ratings for the complete loss (amputation) of an
arm (60%) or of a leg (40%). These percentages
represent total loss of functionality of that limb. If a
physician can state that an injured worker has
suffered a particular percentage loss of functionality
of a limb, then it stands to reason that he or she has
a similar effect on the relevant activities of daily living
which involve the use of that limb. Keep in mind that
under the old rating schedule, physicians were
required to rate the percentage loss of functionality
of different body parts all the time (e.g., 50% loss of ability for gripping, grasping, pushing and pulling).
The impairment rating, then, is determined as a
function of the maximum value for the extremity. For
example, if the physician states that the injured
worker has sustained a 50% loss of functionality
of a leg, then the impairment rating should be 50%
of the value for total loss of functionality, in this case,
40% WPI. The rating would be 20%.
(50% x 40% = 20%).


 



HARRIS: Is there any way to get beyond the
limitations on pain for those cases where there is
clearly a major pain problem, such as RSD/CRPS?


RONDEAU: The Guides generally do not allow for
subjective factors such as pain to be independently
rated and assigned an impairment rating. In the
case of RSD/CRPS, however, the Guides specifically
provide for impairment ratings. Section 13.8
specifically addresses how chronic regional pain
disorders are rated. Table 13-22 (page 343) provides
impairment ratings for upper extremity chronic pain
disorders. In the case of lower extremity chronic
pain disorders, the physician is directed to apply
Table 13-15, the station and gait impairment
rating method.

 
 


To contact Charles R. Rondeau:

Charles R. Rondeau, Esq.
Graiwer & Kaplan
3600 Wilshire Blvd, Ste 2100
Los Angeles, CA 90010
(213) 380-7500
email: crondeau@graiwer-kaplan.com



 

AMA Guides:
Beyond the Tables

Interview with Charles Rondeau, Esq.


Charles R. Rondeau is an applicant's attorney
who has written and lectured widely on the AMA
Guides. He has been appointed as a reviewer of
the Sixth Edition of the AMA Guides now in final edit.

In this interview with Marjory Harris, Mr.Rondeau explores some AMA Guides-related issues that go beyond the individual tables.

> AMA Guides
> The Doctor's Office: Pain
> Vocational Expert Witness
> Present Value TPD
> The Defense Perspective