The Schedule for Rating Permanent Disabilities - Part 1

Saturday, January 29, 2005 | 0

The following article by Luis Perez-Cordero, MA, AAPMR, Impairment & Disability Rating Specialist, due to its length, has been broken down in to two parts. This first part will provide guidance on what to expect from physicians in their reports in order to be rateable under the new permanent disability rating schedule. The second part of this series will provide guidance on how to actually perform a rating using the new schedule.

Part 1

Purpose:

1. To put to rest misinformation currently being circulated regarding both the evaluation guidelines and the actual 'adjustment' of the AMA Impairment Whole Person Percentage, i.e., the adjustments of the new rating formula.

2. To address the unfulfilled educational needs of the participants of CAAA's Winter Convention, who attended the Section on Understanding The New Rating Schedule. The numerous interruptions and unbalanced handling of the panelists by its moderator surprised those of us accustomed to the well-balanced educational and informative sessions presented at Squaw Valley.

3. The Schedule as posted at http://www.dir.ca.gov/dwc/dwcpropregs/PDRS.pdf is complete and fully functional. Measuring & Describing Disability After 01-01-0005

8 CCR 9725, 9726 & 9727 - Abolished

The Schedule was not the only emergency regulation dealing with Permanent Disability that when into effect on 01-01-2005. To abide to LC section 4660 (b)(1), alongside with the new Schedule's implementation, the old evaluation regulations for describing measurable factors of disability (9725-Packard Thurber), subjective factors (9727) and psychiatric disability work functions (9726) were ended as of 12-31-2004. Therefore, any physician that prepares the new PDR-4 and/or a comprehensive or medical-legal Permanent & Stationary (P&S) Report must comply with LC section 4660 (b)(1) and the California Codes of Regulation Guidelines for the measuring and description of both impairment and disability found at http://www.dir.ca.gov/dwc/dwcpropregs/8-CCR-9725-et-seq(12-04).pdf.

The 'backside' of the Rating Schedule covers has all of LC section 4660. On page 1-2 of Section 1 of The Rating Schedule you will find the following language: The Calculation of a PD Rating is initially based on an evaluating physician's impairment rating, in accordance with the medical evaluation protocols and procedures set forth in the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition which is hereby incorporated by reference. (Rating Schedule, page 1-2)

If a ratable P&S report was not prepared as of 12-31-2004, the physician has to use the new AMA evaluation protocols to both measure and describe impairment, since the old regulations are no longer applicable or are a part of the Labor Code and California Code of Regulations. Regardless of what correspondence you received to 'lock the use of any prior rating there are strong grounds for objecting to a medical report PDR-3 or PDR-4 describing Permanent Disability with the use of non-existent regulations.

LC section 4061.5 states that the primary treating physician (PTP) shall, in accordance with rules promulgated by the Administrative Director, render opinions on all medical issues necessary to determine eligibility for compensation. Determination of Medical Issues and additional criteria is addressed under (LC section 4060-4062 with the responsibilities of any physician signing the medical report addressed under LC section 4628.

Labor Code Section 139.2 continues to require that in order to produce a complete, accurate, uniform and replicable evaluation, the evaluating physician must support his/her findings and opinions by medical findings based on standardized examinations and testing techniques accepted by the medical community. It is the evaluating physician's responsibility to interpret diagnostic test findings and explain how they support his conclusions & opinions.

To summarize all evaluating physicians must described and evaluate impairment and disability as per the 5th Edition of the AMA Guides. Let us be clear it is the 5th edition and only the 5th edition of the AMA Guides that is to be use. The new Rating Schedule applies to injury dates before 01/01/05 (LC section 4660(d)) if:

1. No Comprehensive or PTP Report indicating existence of PD was written as of 12-31-2004.
2. No notice required under LC section4061, was sent.
3. TD Payments were being paid as of 12-31-2004 and after, or are still being paid.

Tracking Permanent Disability was well summarized by the Santa Barbara Law Offices of Kathleen M. Stout, by providing us with a simple checklist:

1. AMA Guides Apply because no P&S or termination of TD prior to 01-01-2005

2. Old Rating Guidelines (1978 or 1997 Schedules) Apply Because:

a. P&S report or Dr._________ dated ________Found PD prior to 01-01-2005. *
Author's Note: This has nothing to do with a P&S date - it has everything to do with finding Disability
b. Temporary Disability ended on _________ and LC 4061 PD notice was sent on________.
c. Temporary Disability ended on _________ but the required PD notice (delay/start payments) under LC 4061 PD was sent on________.

A Primary Treating Physician reporting vocational modifiers on a Progress Report (PR-2) does not qualify for the exceptions of LC section 4660(d) . Only a PD-3 or a comprehensive P&S are considered the proper reporting formats under 8 CCR 9785(g): When the primary treating physician determines that the employee's condition is permanent and stationary, the physician shall report any findings concerning the existence and extent of permanent impairment and limitations and any need for continuing or future medical resulting from the injury. The information may be submitted in various forms, or in such other manner as provides all of the information required by Title 8, California Code of Regulations, Section 10606. All measurements should be made in accordance with concurrent IMC Guidelines under the California Code of Regulations, specifically 8 CCR 46.

Evaluating Physician's Responsibilities After 01-01-0005

The 5th Edition of the AMA Guides defines the standard methods the evaluator must follow to measure the objective manifestations of an impairment when considering both anatomic and functional loss. The AMA Guides is also very clear in stating that other approaches, when published in scientific- peer-reviewed literature, will be evaluated and considered for future editions of the AMA Guides.

1 . The evaluating physician follows protocols & Evaluating (Rating) Criteria from AMA Chapters 1 & 2 and the Impairment Chapter(s) being evaluated.

1.1. Chapters 3&4 - Cardiovascular System
1.2. Chapter 5 - Respiratory System
1.3. Chapter 6 - Digestive System
1.4. Chapter 7- Urinary & Reproductive System
1.5. Chapter 8 - Skin
1.6. Chapter 9 - Hematopoietic System (Blood & Immune System)
1.7. Chapter 10 - Endocrine System
1.8. Chapter 11 - Ear, Nose, Throat & Related Structures
1.9. Chapter 12 - Visual System
1.10. Chapter 13 - Central & Peripheral Nervous System
1.11. Chapter 14 - Mental & Behavioral Disorders *
Author's Note: California has adopted The Global Assessment of Function (GAF) Scale for describing both impairment and disability. Pages 1-12 to 1-15 of The 2005 Rating Schedule provides the protocols and guidelines to be followed. Page 1-16 of the Schedule provides you with a GAF Score to Whole Person Impairment Rating Standard % (WPIRS%) Table. Once you convert the GAF Score to a WPIRS%, then you can adjust for Diminished Future Earning Capacity (FEC), Occupation and Age.
1.12. Chapter 15 - Spine
1.13. Chapter 16 - Upper Extremities
1.14. Chapter 17 - Lower Extremities
1.15. Chapter 18 - Pain

When applicable and when listing medical findings uses AMA reporting forms or incorporates within the comprehensive P&S report and/or attach to the new Pr-4. The AMA Guides are very clear in stating that full and complete reporting is required. Thorough documentation of medical findings at the onset provides claim administrators with the information needed to quickly provide entitled benefits. The introduction of Chapter 2 states it best: Two physicians following the rating methods of the Guides 5th Edition to evaluate the same patient shoulder report similar results and reach similar conclusions. Clinical findings must be fully described so any knowledgeable observer can check the findings with the Guides criteria.(This last requirement well supported by California Case Law under the concept of what constitutes substantial medical evidence.)

2. Fully explains how the impairment ratings were calculated.
2.1. PTP, QME, IME, AME performs physical evaluation & prepares report when condition becomes P&S - employee has reached maximal medical improvement (MMI).
2.2. Understands, follows and applies all pertinent California statutes pertinent to the evaluation of impairment and preparation of a comprehensive medical P&S (MMI) medical report.
2.3. List all charts, tables and AMA Guides page numbers for all the rated impairments.
2.4. Provides a clear/ reasoned opinion and explains why a specific methodology has been chosen, as supported by AMA evaluation protocols and criteria, when the AMA Guides provide various methods of rating the impairment.
2.5. Addresses the specific occupational factors that contributed or played a significant role in producing the described impairment levels. (Vocational Causation)
2.6. Analyzes 'vocational tasks' and provides explanation of the impact of the medical impairment on vocational (work) activities.
2.7. Emphasizes residual abilities over activity limitations.
2.8. Apportions causation to both avocational factors and pre-existing pathological findings. - LC section 4663(a) & 4664(a): Apportionment of Permanent Disability shall be based on causation. Employer only liable for the % of PD directly caused by the injury arising/occurring in the course of employment (AOE/COE).
2.9. Reasoned medical opinion indicates knowledge of medical literature, professional society consensus, and scientific based evidence for the condition's 'work relatedness'. 2.9.1. PTP's should also refer to ACOEM Guidelines - Chapters 1 to 4.
2.10. Uses AMA Chapter where problem originated or greatest dysfunction currently exists, as supported by fitting clinical findings, imaging, clinical tests, etc.
2.11. Clinically correlates reviewed imaging and clinical studies. Evaluates actual films & test results, addresses personal avocational habits when so required by AMA Guides protocols.
2.12. Compares and addresses consistency of symptoms and current complaints with medical/clinical records and prior documentation.
2.13. Avoids duplication of impairment when combining factors within Single Digits, Joints, Upper/Lower Extremity, Spinal Segments or Organ Systems.
2.14. Determines Range of Motion (ROM) Impairment by first comparing to unaffected site. Adjusts for exceptions by using normal values tables.
2.15. Validates findings and comments on if the limitations are result of the vocational injury or due to non-vocational exposures, body habitus or the result of normal aging.
2.16. Subjective complaints without an objective/clinical basis cannot be the sole criterion for an impairment rating.

LC section 3209 defines the licensed health professionals ["physicians"] allowed to determine disability under the Workers Compensation System. These professionals are permitted to treat or determine residual disability within the scope of their licensed practice as defined by California Law. "Physician" includes physicians and surgeons holding an MD or DO degree, psychologists, acupuncturists, optometrists, dentists, podiatrists and chiropractic practitioners licensed by The State of California and within the scope of their practice as defined by California Law. (A P&S report prepared by a physician's assistant is not valid under California Law.)

3. Follows California Labor Codes/Regulations for P&S Medical Report, i.e., L.C. 4620, WCAB 10606, AD 9785, etc. (Still Applicable)
3.1. Examines/Evaluates Injured Worker (LC 4628(a))
3.1.1. -Date of Exam (LC section 4628(b); 8 CCR section 10606(a))
3.1.2. -Location of Exam (LC section 4628(b))
3.2. Documents Subjective Complaints (8 CCR 10606(c))
3.2.1. -Weights credibility, Addresses validity and Comments on clinical relationship with objective factors - pathological processes.
3.3. Vocational Demands
3.4. History of prior injuries, illnesses, conditions and residuals, (LC 4628(a)(1); 8 CCR 10606(e)) 3.4.1.1. A 'complete history'
3.4.2. -Medical Treatment to date of evaluation (8 CCR 10606)
3.4.3. -Reasonableness of treatment
3.5. Summary of medical records reviewed (LC 4628(a))
3.6. Findings on examination (8 CCR 10606(f))
3.7. Diagnosis (8 CCR 10606(g); LC 4628(a)(3))
3.8. Discussion of Period of Temporary Disability (8 CCR 10606(h))
3.9. Discussion of Permanent Impairment (8 CCR 10606(k))
3.9.1. -Whether or not permanent impairment resulted from industrial injury (8 CCR 10606(k))
3.9.2. -Date on which condition became Permanent and Stationary (8 CCR 10606(k))
3.9.3. -Injured worker has reached maximum medical improvement (MMI) or condition has been stationary for a reasonable period of time
3.9.4. (8 CCR 9735 and 10152)
3.9.5. -No change in worker's condition is expected, either for better or worse. (Sweeney v. IAC (1951) 107 Cal. App. 2d 155,16 Cal. Comp. Cases 264)
3.9.6. - Description of how the Impairment was calculated - Findings relied on and reasons for conclusion (8 CCR 10606(h), (i) and (k); LC 4062.2(d))
3.9.7. -Measurable & Clinical Factors of Impairment
3.9.8. -Impact on Vocational Activities (8 CCR 10606(h))
3.9.9. -Vocational or Medical Modifications (8 CCR 10606(h))
Work restrictions and loss of pre-injury capacity are no longer ratable but are still required. For job modifications and accommodations purposes, evaluating physician must provide both medical and vocational modifiers. Both types of modifiers must be supported by the impairment findings including the need for modifications to usual & customary work activities.
A job description or vocational functions analysis should help physician address the following issues:
Q: Are the current impairment levels precluding the injured worker from performing the usual and customary duties - 'essential (vocational) functions' of his occupation?
Q: Could the injured worker or co-workers be vulnerable, if modifications or accommodations are not provided? For example - Due to a diagnosis of vertigo, employee can no longer work on unprotected scaffolding.
3.10. Medical Cause of Disability (8 CCR 10606(i))
3.11. Causation Apportionment (8 CCR 10606(1))
SB 899 - L.C.S. section 4663 & L.C.S. section 4664: The evaluating physician must address the occupational factors that contributed or played a significant role in producing the disability, which the physician has described. Apportionment involves a segregation of the disability attributable to the industrial injury from that, which is due to other factors. The evaluating physician must give a reasoned, well-supported opinion authenticating the level of disability that is due to both vocational and avocational factors. The physician's reasoning should be reflected within the medical report with proper substantiation of all medical opinions. Physician must considered avocational factors, findings and symptomatology independent of the permanent disability due to vocational causation.
3.11.1. Avocational Factors & Pre-Existing Findings: Evaluator must provide a well-reasoned opinion based on the review of the medical records/history that considers pre-existing objective pathology, symptomatology, work limitations secondary to pre-existing disability, including time off from work or need for treatment.
3.12. Future or Further Medical Treatment Needed (8 CCR 10606(j))
3.13. Summary of all other information provided to Evaluating Physician
3.14. Signature & Declarations - LCS section section 4628 b)(j) & LCS section 5703(a)(2)

The next installment in this series will review actually performing a rating using the new schedule.

Article by Luis Perez-Cordero, MA, AAPMR. Luis can be reached at pdrating@pacbell.net.

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