Dos & Don'ts: What the Judge Wants to See Part 4

Sunday, August 29, 2004 | 0

This is the fourth article in a series of six by San Diego Workers' Compensation Judge Susan England, reprinted here with permission from the California Society of Industrial Medicine (CSIMS). These articles were first presented as a single paper at the CSIMS conference held in San Diego, June 25-27, 2004. The first article reviewed the evidentiary status of medical reports in the workers' compensation system. The second article reviewed issues with treating reports. The third article began a review of problems with P&S reports, focusing on objective and subjective disability descriptions. This article finishes that discussion by reviewing work restrictions. Earlier articles can be accessed by clicking on the title in the right side bar.

The opinions stated in this article do not represent the stance of the Workers' Compensation Appeals Board, its administration or any other person except the author.

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.

Problems with P&S Reports

Problems with permanent and stationary reports occur with great frequency. Some of the difficulties have been ongoing for years and some are of more recent development. Before beginning your assessment of disability, remember to clearly state that the injured worker's condition has become permanent and stationary and the date upon which that status was achieved.

C. Work restrictions:

1. Work restrictions have been defined for the back and the lower extremities. To the extent that they can be analogized to in connection with the upper extremities, they may be of some value. However, it is generally better for the upper extremities to describe percentage of pre-injury loss.

2. Make sure that if there are multiple body parts involved that you specify to which body part each work restriction applies - they rate differently depending on the body part causing the restriction. For example in a case where the neck and left upper extremity are injured, a statement that the applicant is limited from working at or above shoulder level could apply to just the neck, just the left arm or to both. Be clear what you mean.

3. Give enough information so that the restriction has meaning. For example a statement that the injured worker is restricted from standing greater than thirty minutes is meaningless without an indication of whether the activity can be resumed after rest, what kind of rest is needed, how long must the rest period be, etc. It would be helpful if the restriction were worded in terms of percentages of the workday.

4. Please remember that a restriction from both standing and walking is rated differently from a restriction from only standing. Be specific if only standing is affected or to indicate that both standing and walking are affected.

5. Make sure the permanent disability description of work restrictions is consistent with the restrictions outlined in the paragraph regarding vocational rehabilitation. If there are greater restrictions for vocational rehabilitation due to some non-industrial condition, that should be specified. Otherwise there is an ambiguity in the report that may prevent it from being relied upon for permanent disability purposes. Although vocational rehabilitation may never come into play as it once did, there is some benefit in maintaining an analysis of the work-ability of the applicant, considering all factors. SB 899 provides that the employer may get some deduction of permanent disability if the injured worker is offered modified or alternative work. In order to make that offer, the employers will need to know just what kind of work duties the injured worker can assume. Since the language of the new law is consonant with our old vocational rehabilitation analysis, that kind of approach by the physicians is still appropriate.

6. Watch your adjectives. Similarly to the describers of levels of pain, the describers of frequency also have particular meanings. Use them accordingly.

a) Prolonged means about 75% of the time.

b) Repetitive means about 50% of the time.

c) Occasional means about 25% of the time.

A description of no prolonged repetitive gripping is ambiguous as both are frequency modifiers.

A preclusion from repetitive grasping, contemplating a 25% loss of pre-injury capacity for grasping, is contradictory.

A limitation to occasional gripping and torquing with the hand, contemplating a 25% loss of capacity is likewise contradictory, since the ability to do only occasional gripping and torquing represents a 75% loss.

7. If you are the treating physician, do not write your permanent and stationary report in a vacuum. Remember or review what has gone before. For example, if you have allowed the injured worker to return to work in a modified capacity and he has done so and subsequent reports do not show a change in the restrictions, it is ambiguous to state that there are no work restrictions in your permanent and stationary report. If, indeed, there are no work restrictions necessary on a permanent basis, the improvement in the applicant's condition such that the temporary restrictions are no longer applicable ought to be specifically noted.

The next article will discuss ACOEM and Utilization Review .

Contributed by California Workers' Compensation Judge Susan England.

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.