The Proposed PDRS - Injured Workers Perspective
Sunday, December 19, 2004 | 0
The new Permanent Disability Rating Schedule (PDRS) proposed by the
Administrative Director has stirred up considerable debate and conversation in the California workers' compensation community. To highlight the debate on the topic, WorkCompCentral presents two opposing views. The following is a view of the new, proposed, PDRS for the perspective of the injured worker. In the Insurance segment the opposing viewpoint is debated.
Comparison of Total Disabilities From the Proposed Rating Schedule
with Conclusively Presumed Total Disabilities per L.C. 4662
On review of the proposed new Rating Schedule, there is one glaring omission that
needs to be focused on. (Oftentimes you can learn more from what is left out than from
what is put in.)
The omission is Labor Code section 4662. There is only one reference to Labor Code
section 4662 on page 2 of the "introduction and instructions". That statement reads:
"Some impairments are conclusively presumed to be totally disabling." (Labor
Code section 4662)
What is not disclosed is specifically what those four conclusive total presumptions are.
No doubt because if you rate them out (see below) on the AMA Guides, not one of
them comes close to 100%. They go down to as low as 30% with most ranging from
50% to 60% to a high of 70%.
(Note: The AMA rates impairment. The only total 100% impairment is death under
the AMA. The disability schedule rates disability, NOT impairment. One can be totally
100% disabled without being 100% totally impaired-i.e. dead.)
The dichotomy is striking. Here we have statutorily mandated conclusive presumptions
of total disability that are not even mentioned in the new Rating Schedule.
Here we have a Rating Schedule that is promulgated by regulation from an ambiguous
statute, that sets forth mandates for ratings far lower than anything that would compare
to the four clear statutory conclusive total disabilities.
It would seem that this has been done for the following reasons:
1) The authors of the new Rating Schedule do not want the people using the
schedule to even know what those four conclusively total disabilities are.
2) The implicit comparison between those ratings of 100% and all other similar
ratings in the Guidelines by comparison is astonishing.
3) It clearly would show the huge dichotomy between what 100% disability
ratings should be and what the Guidelines mandate as 100% impairment
(death).
Additionally, the statute, Labor Code section 4662, states:
"In all other cases, total disability shall be proven according to the fact."
That language is nowhere to be found in the new Rating Schedule. However, it is the
statutory mandate. It is not a regulation. It is a statute. The proposed Rating
Schedule has not one word of reference to the fact that the statute mandates that you
can prove total disability according to the fact of total disability.
Below are listed the four conclusive total disability presumptions under Labor Code
section 4662 with the comparison ratings on the AMA Guides cited with the particular page
from which the citation was found for the AMA ratings:
| Conclusively Presumed Total Disability Per L.C. section 4662 | Same Disabilities per AMA GUIDES |
| 1. Loss of both eyes or sight thereof 100% | 50% to 85% (50% = legal blindness 20/200) (85% = no light perception) See AMA Guides, page 298 |
| 2. Loss of use of both hands or the use thereof 100% | 46% to 78% (bilateral amputation at wrist - 70%) See AMA Guides, page 440 + cvc (amputation of all fingers at the base, both hands - 69%) See AMA Guides, page 441 (total hand impairment, bilateral - 59%) See AMA Guides, page 518 (bilateral loss of use of the hands so that "cannot use the involved extremities for self-care or daily activities" - 46 - 65%) See AMA Guides, page 343 |
| 3. An injury resulting in practically total paralysis 100% | 50% to 89% (paralysis causing confinement to bed) See AMA Guides, page 341 |
| 4. An injury to the brain resulting in incurable imbecility or insanity 100% | 30% to 40% (mental injury requiring assistance and supervision for most activities of daily living) See AMA Guides, page 320 |
Note: The difference in monetary value is extreme, as 100% total disabilities are paid at the temporary disability rate for life. The AMA PD dollar values would be approximately 3% to 36% of the 100% dollar values under L.C. 4662 (assuming an age of 40 on the date of injury and maximum earnings with a life expectancy of 37 years). Thus, using the AMA Guides for these ratings would result in a 64% to 97% reduction in dollar value.
The deletion of any reference to the four conclusive 100% total disabilities covered by Labor Code section 4662 was probably not an oversight. The truth is the comparison of those four 100% ratings with the AMA ratings for the same disabilities was simply too stark to put into print. To illustrate the actual dollar differences and the percentage reduction of dollars, see the table attached below.
Assume two injured workers, age 40 when found to be permanent and stationary, i.e., permanent disability benefits begin, who get hurt in 2005 after the new PD schedule based on AMA Guide is adopted. One injured worker, Bill Maxx, is a maximum wage earner for the purposes of determining all benefits, the other, Joe Average, makes the State Average Weekly Wage (SAWW) as determined for the twelve months preceding March 31, 2004 is $806.11(US Department of Labor). The table below reflects the monetary effect of their disability when compared between the old PD rating system and the PD system based on AMA Guides when the injured workers have injuries that would be conclusively presumed to be 100% (LC section 4662). The dollar amount paid pursuant to the AMA Guides does not include the economic modifier as it is unknown at this time. The 2005 PD is based upon the dollars awarded where there are 50+ employees and no job offer, the maximum possible award for the injured worker. Life pension does not take into consideration the increases in the SAWW per LC section 4659(c).
Life expectancy: 37 years = 1,930.57 weeks
Joe Average would have a weekly temporary disability (TD) rate of $537.41. Bill Maxx would have a weekly temporary disability (TD) rate of $840.00.
| Injured Worker | Disability | With Presumption | Effect Without Presumption for Comparison Purposes | Difference in Maximum Potential Payout after 37 Years | Percent Reduction in Dollar Value | ||
| Conclusively Presumed Total Disability LC 4662 | Maximum Potential Payout After 37 Years | If rated per the AMA Guides | Maximum potential payout after 37 years | ||||
| Joe Average TD Rate: $528.31/wk |
Loss of both eyes or sight thereof | 100% | $1,037,507.62 | Legal blindness 20/200 = 50% | $68,343.39 | $951,596.05 | 92% |
| No light perception = 85% (p 298) | $208,696.98 @ $270/wk for 673.25 wks, plus $121,494.83 (life pension of $96.63/wk for 1,257.32 wks) = Total: $330,191.81 | $689,747.63 | 66% | ||||
| Loss of both hands or use thereof | 100% | $1,037,507.62 | Bilateral amputation at wrist = 70% (p 440 + combined value chart) | $134,176.98 @ $270/wk for 433.25 wks, plus $57,871.42 (life pension of $38.65/wk for 1,497.32 wks) = Total: $192,048.40 | $827,891.04 | 80% | |
| Amputation of all fingers at the base, bilateral = 69% (p 441) | $106,799.39 | $913,140.05 | 88% | ||||
| Total hand impairment, bilateral = 59% (p 518) | $86,559.39 | $933,380.05 | 90% | ||||
| Bilateral loss of use of hands so that "cannot use the involved extremities for self-care or daily activities" = 46% to 65% max. (p 343) | $98,703.39 | $921,236.05 | 89% | ||||
| Joe Average TD Rate: $528.31/wk |
Injury resulting in practically total paralysis | 100% | $1,037,507.62 | Paralysis causing confinement to bed = 50% to 89% max. (p 341) | $228,568.98 @ $270/wk for 737.25 wks, plus $133,771.17 (life pension of $112.10/wk for 1,193.32 wks) = Total: $362,340.15 | $657,599.29 | 63% |
| Injury to brain resulting in incurable imbecility or insanity | 100% | $1,037,507.62 | Mental injury requiring assistance and supervision for most activities of daily living = 30% to 40% max (p 320) | $50,570.14 | $969,369.30 | 93% | |
| Bill Maxx TD Rate: $840.00/wk |
Loss of Both eyes or sight thereof | 100% | $1,621,678.80 | Legal blindness 20/200 = 50% | $68,343.39 | $1,553,335.41 | 96% |
| No light perception = 85% (p 298) | $208,696.98 @ $270/wk for 673.25 wks, plus $121,494.83 (life pension of $96.63/wk for 1,257.32 wks) = Total: $330,191.81 | $1,291,486.99 | 80% | ||||
| Loss of use of both hands or the use thereof | 100% | $1,621,678.80 | Bilateral amputation at wrist = 70% (p 440 + combined value chart) | $134,176.98 @ $270/wk for 433.25 wks, plus $57,871.42 (life pension of $38.65/wk for 1,497.32 wks) = Total: $192,048.40 | $1,429,630.40 | 88% | |
| 100% | $1,621,678.80 | Amputation of all fingers at the base, bilateral = 69% (p 441) | $106,799.39 | $1,514,879.41 | 93% | ||
| 100% | $1,621,678.80 | Total hand impairment, bilateral = 59% (p 518) | $86,559.39 | $1,514,879.41 | 95% | ||
| 100% | $1,621,678.80 | Bilateral loss of use of hands so that "cannot use the involved extremities for self-care or daily activities" = 46% to 65% max. (p 343) | $98,703.39 | $1,514,879.41 | 94% | ||
| Injury resulting in practically total paralysis | 100% | $1,621,678.80 | Paralysis causing confinement to bed = 50% to 89% max. (p 341) | $228,568.98 @ $270/wk for 737.25 wks, plus $133,771.17 (life pension of $112.10/wk for 1,193.32 wks) = Total: $362,340.15 | $1,259,338.65 | 78% | |
| Injury to brain resulting in incurable imbecility or insanity | 100% | $1,621,678.80 | Mental injury requiring assistance and supervision for most activities of daily living = 30% to40% max (p 320) | $50,570.14 | $1,571,108.66 | 97% | |
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