Writing a Decent Med-Legal Report - Part 4

Sunday, July 20, 2003 | 0

Writing a Decent Med-Legal Report - Part 4

It is absolutely essential that the physician practicing workers' compensation medicine understand and utilize the correct factors to describe permanent disability. One of the biggest complaints workers' professionals have is that medical reports simply don't make any sense with regards to descriptions of permanent disability. We'll take a look at how to properly describe factors of permanent disability in the California workers' compensation system in this fourth part of the series: Writing a Decent Med-Legal Report.

The factors of permanent disability the physician describes have several important purposes: 1) they are used by the parties to a work comp case to give the case a value by which it can be settled; 2) if the case goes to litigation, and ultimately trial, the workers' compensation judge refers to the factors of disability in making an award; 3) disability factors may impact an injured workers' right to vocational rehabilitation.

Reference is made throughout this article series to the Industrial Medical Council's Physician's Guide. This primary resource for physicians is not only for beginners in workers' compensation medicine, but also is a valuable ongoing reference source. The Guide counsels that:

"A worker's disability evaluation can have a major effect on the worker's life, because it will be a key factor in determining the amount of compensation the worker will receive. Because there is a limit on the number of evaluations a worker may have at the employer's expense, your evaluation may be the only evaluation for a particular worker. For this reason, it is critical that your report be comprehensive and fair."

Several studies concerning workers' compensation litigation have concluded that there would be less litigation, and cases would be settled more quickly, if permanent disability were easier to resolve. One of the major reasons permanent disability becomes such a factor in litigation is because the factors described by the physicians in a case are not readily or easily interpreted into an appropriate numerical value, also known as a "standard rating".

The physician needs to understand the process in which the medical report fits in the workers' compensation scheme. In California, the factors of disability determine the standard rating, which is then factored into an algorithm to take into account the injured worker's age on date of injury, as well as his or her occupation, to produce a final permanent disability rating number, which is then plugged into a table for a final dollar value.

The Guide notes that "[t]he disability evaluation is used by the rater, in conjunction with a rating schedule that correlates impairment with disability (Schedule for Rating Permanent Disabilities), to assign to the worker a permanent disability rating, stated as a percentage, which represents the worker's diminished ability to compete in the open labor market. The physician's disability evaluation report may also be used to determine eligibility for future medical treatment and vocational rehabilitation services."

The single biggest, and most common, mistake physicians make in describing permanent disability is thinking in general life terms. Too many medical reports conclude with disability descriptions that would be applicable to daily life functions, but are not otherwise appropriate for describing a worker's diminished ability to compete in the open labor market. Remember that the purpose of describing an injured workers permanent disability is to convey what the injured worker can or can't do at work. Your job is to describe the affected person's inability to perform certain work functions that may have been compromised by an injury or illness.

There are different ways to describe permanent disability in California, grouped either into objective factors, subjective factors, loss of pre-injury capacity, and work restrictions. The description in a report that results in the highest permanent disability rating is going to control the rating for that medical report.

Objective factors and subjective factors of disability are quite easy to understand. Basically, objective factors are going to be the numbers related to the disability. In a carpal tunnel case it would be the Jamar grip strength readings.

Likewise, subjective factors of disability are also relatively simple to understand - these are your descriptions of the injured workers pain complaints.

More difficult are loss of pre-injury work capacity, and work restrictions. There can be actual work restrictions (meaning the person cannot perform a certain task) and prophylactic work restrictions (which describes what the injured worker should not do in order to avoid re-injury, exacerbation or irritation of the injured body part).

The Guide cautions the practitioner when using loss of pre-injury capacity because it is important to estimate each individual's physical limitations that existed prior to the injury. This is a difficult medical legal task because it involves an estimation, which will require a thorough understanding of a person's particular abilities. This must be supported by facts. Making an estimate of one's pre-injury capacity requires an explanation as to how that estimate was arrived at. Failure to do so will render the medical report subject to attack and invalidation.

Likewise, an inherent risk in describing a permanent disability via prophylactic work restrictions is using descriptive language without regard to what that language actually means when interpreted to a standard rating. Too often, physicians impose a work restriction that would be applicable to every day life, but not necessary to one's working life. The Guide defines work restrictions as "limits that the physician places on job tasks or working conditions," (emphasis added). The Guide says to use restrictions that are general in nature because they will not only govern the financial value of a case, but may also guide the injured worker's future employment and/or vocational rehabilitation.

But, what the Guide doesn't mention is that it is important to use language that has been standardized for such purposes. Understanding the effect of using a modifier, such as "repetitive" or "prolonged" is important to ensure that the physician actually conveys what he feels the restriction should be.

In addition, it is important for the reporting physician to use "rateable" language. "Rateable" language means terms that can be understood by the workers' compensation community and interpreted into a standard rating. The Guide provides as an example:

The patient has sustained a back injury and has recovered from a laminectomy. Following are the work restrictions a well-written report might contain.
Work restrictions:
_ No repetitive bending or stooping;
_ No frequent lifting over 25-35 pounds from floor to shoulder;
_ No occasional lifting over 50 pounds from floor to shoulder;
_ No repetitive lifting over shoulder level;
_ No lifting requiring twisting of the trunk.
To determine loss of pre-injury capacity, consider the above lifting restrictions and compare them to the patient's pre-injury lifting capacity. One could then estimate that the patient has lost overall approximately 60 percent of his pre-injury capacity to lift and approximately 50 percent of his pre-injury capacity to bend or stoop."

Note that the above are standard terms used in the workers' compensation community for describing a back disability. They are clear and concise. A description that would present problems might read, "The injured worker should be prevented from engaging in activities that require more than forceful lifting". This kind of description does not match generally accepted rating language, and will present difficulties at the time of claim resolution.

In short, writing a decent medical report when it comes to authoring good permanent disability description language requires an understanding of what the language is used for, and knowledge of standard disability terms applicable to the different body part groups. The Industrial Medical Council publishes a list of qualified educational providers that conduct courses and publish material to assist physicians in understanding how to ascribe appropriate permanent disability language.