Is The Use Of 'The Guides' Mandatory In Rating Permanent Disability?

Saturday, February 11, 2006 | 0

By David DePaolo

Is the use of the AMA Guides in the determination of permanent disability in California mandated by law or regulation? What if the Guides are not substantial evidence of the level of impairment from a work injury?

A collective gasp is now audible throughout the workers' compensation community ... Heresy? Blasphemy? Are not the Guides the undisputed, irrefutable Bible of all that is permanent impairment? Would not our revered, reformed workers' compensation system, one that was once the laughing stock of the nation and whose costs have now been reduced by more than $15 billion, fall into complete disarray and chaos were it not for the "consistency, uniformity and objectivity" brought to the determination of impairment by the Guides?

Perhaps. Revelations about how the Guides are authored should cause the entire workers' compensation community in California to carefully reconsider the validity of the Guides, and indeed, the validity of our system of determining the appropriate amount of indemnity paid to injured workers for their permanent disabilities.

This article will first review the basics of the current system of determining permanent disability indemnity, then we'll take a look at why the Guides are not the only source for consideration in the determination of permanent disability, and finally we'll see why the Guides are seriously flawed and may not, in fact, even be substantial evidence upon which an award of permanent disability indemnity may be based.

Labor Code section 4660 is the prime directive in the determination and calculation of permanent disability. It states in relevant part:

(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee's diminished future earning capacity.

(b) (1) For purposes of this section, the "nature of the physical injury or disfigurement" shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition).

(2) For purposes of this section, an employee's diminished future earning capacity shall be a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees. The administrative director shall formulate the adjusted rating schedule based on empirical data and findings from the Evaluation of California's Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute for Civil Justice, and upon data from additional empirical studies.

(c) The administrative director shall amend the schedule for the determination of the percentage of permanent disability in accordance with this section at least once every five years. This schedule shall be available for public inspection and, without formal introduction in evidence, shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.

(d) The schedule shall promote consistency, uniformity, and objectivity. The schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule, amendment or revision, as the fact may be. For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker. (Emphasis added by author.)

In analyzing this code section, it is apparent that there is nothing that states that the actual permanent disability rating shall be derived from or that the AMA Guides shall be the sole source of evidence of impairment. Simply, the physician from whose report permanent disability calculations are to be performed must incorporate AMA Guide descriptions and measurements, but there is nothing in this code section that states that the ultimate calculation of disability be based on the Guides rating of impairment.

The permanent disability rating schedule incorporates by reference the AMA Guides, but the schedule, which has regulatory effect, does not mandate that permanent disability ratings derived from or that the AMA Guides shall be the sole source of evidence of impairment.

The schedule, at page 1-2 provides only that the "calculation of a permanent disability rating is initially based on a evaluating physician's impairment rating, in accordance with the medical evaluation protocols and rating procedures set forth in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 5th Edition (hereinafter referred to as the "AMA Guides"), which is hereby incorporated by reference." (Emphasis added by author.) There is nothing here that states that the Guides are the sole source of a permanent disability rating calculation.

Certainly, though, if the Guides are not the sole source for a permanent disability calculation, then they are the best source, right? A great and respected institution such as the American Medical Association, one of the most important clearinghouses for scientific medical information and literature in the world, would not publish specious, artificial medical information, would it?

Perhaps it would.

Chapter 18 is the chapter on the impairment rating of pain. Philipp M. Lippe, MD., FACS was one of the original authors of Chapter 18 and is still cited in the credits to the chapter. In a seminar for members of the California Society of Industrial Medicine and Surgery (CSIMS) and WorkCompSchool (www.workcompschool.com) Dr. Lippe explains that, as originally authored, Chapter 18 provided for up to an 80% whole body impairment rating for pain. According to Dr. Lippe, when this chapter was first presented to the Guides editors, they felt that 80% was excessive, so they assigned the chapter to other members of the American Board of Pain Medicine.

The Dr. Lippe's colleagues then wrote the second iteration of Chapter 18, and provided for a whole body impairment of up to 40%. This too, according to Dr. Lippe, was rejected by the Guides editors without explanation, without apology. Thereafter, Chapter 18 was anonymously rewritten to provide for the current 3% pain add-on.

As Dr. Lippe explains it, there was no scientific or medical explanation for this authorship anomaly, that there are significant discrepancies and internal inconsistencies within that chapter, and that the chapter was NOT written using a consensus of medical community opinion. Essentially, Dr. Lippe says that Chapter 18 is pure speculation, conjecture and surmise - that it is NOT substantial evidence of impairment related to pain!

It is well settled in California workers' compensation law that an award must be based on substantial evidence (see Labor Code section 5952). The oft-cited Lockheed Litigation Cases (2004), 115 Cal.App.4th 558, tell us that a medical opinion must have a reasonable basis behind it to support an award:

"An expert opinion has no value if its basis is unsound. (Citation.) Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on 'in forming an opinion upon the subject to which his testimony relates.' We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible."

Thus, a medical report that relies solely on the AMA Guides, where it could be shown that the particular chapter in the Guides is "speculation or conjecture" would thus be inadmissible as to the issue of permanent impairment, and thus a permanent disability rating could not be based on it.

Such is the case, apparently, with Chapter 18 of the Guides 5th.

Cases are brewing at the trial level, prepared to challenge any reliance on the Guides rating of impairment for pain, and setting the record for appellate review of this important issue to the workers' compensation community. Applicant attorneys are challenging medical reports based on the Guides as not substantial evidence where there is historical recordation of pain complaints. Physicians need to ensure that their reports include not only reference to the Guides, but also describe pain in other acceptable medical community-based language. And the defense community needs to review their reserves, because if a published appellate court decision declares Chapter 18 not substantial evidence any savings that were the result of "consistency, uniformity, and objectivity" will be lost.

David DePaolo is the CEO of workcompcentral.com, Inc.

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