Duplication vs. Pyramiding and the MDT

Sunday, June 23, 2002 | 0

The last article reviewed the Hegglin, Mihesuah and Morgan cases in situations where a single injury causes disability to multiple parts of the body.

Under current case law as well as the definitions set forth in the Schedule For Rating Permanent Disabilities, April 1997, it is the trial judge who should delineate all factors of disability when considering multiple disabilities from a single injury. It is the disability evaluator who then determines if some or all factors of disability are the same or different. If the factors of disability are the same, there is duplication. If the factors are different, no duplication exists and the standard ratings will be put through the MDT. If some factors of disability are duplicative and some factors are not, the disability evaluator will eliminate the duplicating factors of disability and then run the remaining factors through the MDT. Disability evaluators believe that the MDT does not take into account duplication, but only pyramiding. Pyramiding occurs when an unrealistically high rating is obtained when adding ratings of individual body parts. There is no indication that the MDT was ever intended to include a provision for duplication as set forth in Hegglin. It would, therefore, appear that the correct method for handling duplication is for the trier of fact to outline all the factors of disability, then the disability evaluator determines duplication, if any, and then completes the rating using the MDT, if applicable. (If there is total duplication, do not use the MDT.)

In determining whether factors of disability are overlapping or duplicative, it must be determined whether the employee has a greater inability to compete in the open labor market as a result of the added disability. If the added disability does not decrease his ability to compete in the open labor market or further hamper his earning capacity, then there is total duplication and no entitlement to additional disability. This is a question for the trier of fact and the disability evaluator. The physician also plays an important role in duplication. It is up to the physician to outline the factors of disability for each part of the body injured.

Some applicant's attorneys argue that any time there is a no heavy work restriction for the back, and no heavy work restriction for the knee, the employee is entitled to both because it is a greater handicap to compete in the open labor market. Likewise, they argue that the Hegglin theory is correct. However, it appears at present that the majority of the cases and the Appeals Board follow the reasoning of Morgan and Mihesuah , applying duplication before putting the standard ratings through MDT. As an example, if there is a no heavy work disability for the back and a no heavy work disability for the knee, these would be totally duplicating, and there would be only a 30 percent standard. However, the employee would be entitled to some increased disability for the objective and subjective factors of disability, which do not duplicate. For instance, if there is a no heavy work restriction for the knee and a no heavy work for the back and for the back a constant slight back pain, the employee will get a 30 percent standard for the knee and a ten percent standard for the back pain. However, if the employee has a constant slight pain becoming moderate on heavy work for the back and a no heavy work restriction for the knee, the constant slight pain in the back would not duplicate the no heavy work restriction, but the moderate pain on heavy work would be duplicative and would be not be applied. Again, the employee would only be entitled to an additional ten percent for the back.

Attorneys must be careful in determining overlap and duplication to determine if the factors of disability are, in fact, the same or different. The fact that the physician uses the same restriction does not necessarily mean they are the same. It might be that a disability of light work for hepatitis, as occurred in Hegglin , would not overlap a work restriction for the back because one is for lifting and the other is for weakness and fatigue and, therefore it could be argued that they are not duplicate factors of disability. Generally the rule applied by disability evaluators is that, if the work restrictions are the same, then they are duplicative.

It is up to the physician, in his report, to explain why the disabilities are different; otherwise the factors of disability will be found to be duplicative.

One should note that in most cases involving duplication, the duplication will be partial and not total. As can be seen in the Mihesuah case, the disability evaluator did allow an additional ten percent as disability that was not duplicative of the disability to the other part of body.

There may be situations in which there is total duplication, partial duplication, or no duplication at all. Whether duplication occurs will depend on the disability description used by the physician and the explanation by that physician. The workers' compensation judge will then lay out all the factors of disability and the disability evaluator will apply the concept of duplication before putting the matter through the MDT.

The next article will review successive injuries to different parts of the body.

Mark Kahn is a Regional Manager for the Department of Workers' Compensation, Division of Industrial Relations, State of CA.