Consistency of AMA Impairment Evaluation : Spine Pt 1

Saturday, December 3, 2005 | 0

Many of the AMA Guides concepts are not new to California Workers' Compensation. Both the Labor Code, the California Code of Regulations and a multitude of cases have defined basic concepts, which continue to help us understand the standards of what constitutes substantial medical evidence in a California P&S medical report.

Pain Add-On to Spinal Impairments

A whole person impairment rating based on the body or organ rating system of the AMA Guides (Chapters 3 through 17) may be increased by up to 03% WPI if the burden of the worker's condition increases by pain-related impairment in excess of the pain component already incorporated in the WPI rating in Chapters 3 to 17. AMA 5th Ed., page 573 & 2005 PDRS, page 1-12.

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Can pain (01-03% WPI) be added to the maximum ranges of a DRE Category? This appears to be an area of dispute, even among the 'experts' of the AMA Guides. But the answer can be found by the use of both The 5th Edition of AMA Guides and The Schedule for Rating Permanent Disabilities (05PDRS). Dr. Linda Cocchiarella's AMA Guides companion Master the AMA Guides helps clarify the matter even further.

2005 PDRS, page 1-12: "A whole person impairment rating based on the body or organ rating system of the AMA Guides (Chapter 3 though 17) may be increased by up to 03% WPI if the burden of the worker's condition has been increased by pain-related impairment in excess of the pain component already incorporated in the WPI rating in Chapters 3-17."

I. AMA 5th Ed., Section 18.3d, page 573: How To Rate Pain-Related Impairment

This chapter (18) relies largely on self-reports by individuals. Thus, it differs significantly from the conventional rating system, which relies primarily on objective indices of organ dysfunction or failure (Chapters 3 to 17). The system assesses pain intensity; emotional distress related to pain, and ADL deficits secondary to pain. ADL deficits are given the greatest weight. An individual's pain-related impairment is considered un-ratable if (a) behavior during the evaluation raises significant issues of credibility, (b) clinical findings are atypical of a well-accepted medical condition, or (c) the diagnosis is for a condition that is vague or controversial. (Refer to the Algorithm for Rating Pain- Figure 18-1.)

A. First, physician evaluates the individual according to the body or organ rating system, and determines an impairment percentage. During the evaluation, the examiner also assesses pain-related impairment.

B. If the body system impairment rating appears to adequately encompass the pain experienced by the individual due to his or her medical condition, his or her impairment rating is as indicated by the body system impairment rating.

C. If the individual appears to have pain-related impairment that has increased the burden of his or her condition slightly, the examiner may increase the percentage found in A by up to 3%.

1. For example, physician places a worker on Lumbar Spine Category III and determines that based on the severity of both measurable and clinical findings, a 12% best reflects his conventional impairment. Pain and discomfort were not considered as part of this initial determination. Now, physician considers the impact of pain on ADL and determines that an additional 02WPI best reflects the impact of pain on physical activities of daily living. The 02 is added (not combined) to the 12 conventional impairment for a 14WPI that will then be adjusted by the 05PDRS modifiers of FEC, Occupation and Age.

D. The examiner should perform a formal pain-related impairment assessment if any of the following conditions are met:

1. The individual appears to have pain-related impairment that is substantially in excess of the impairment determined in step A or
2.The individual has a well-recognized medical condition that is characterized by pain in the absence of measurable dysfunction of an organ or body part (see Table 18-1 for examples) or
3. The individual has a syndrome with the following characteristics: (a) it is associated with identifiable organ dysfunction that is ratable according to other chapters in the Guides; (b) it may be associated with a well-established pain syndrome, but the occurrence or non-occurrence of the pain syndrome is not predictable; so that (c) the impairment ratings provided in step A do not capture the added burden of illness borne by the individual because of his or her associated pain syndrome (see Table 18-2 for examples).

E. If the examiner performs a formal pain-related impairment rating, he or she may increase the percentage found in step A by up to 03%, and he or she should classify the individual's pain-related impairment into one of four categories: mild (00), moderate (01), moderately severe (02), or severe (03). In addition, the examiner should determine whether the pain-related impairment is ratable or un-ratable. Refer also to the 2nd paragraph on page 1-12 of the 05PDRS.

Evaluating physician must remember that as per the 2005 PDRS, the maximum allowance for pain resulting from a single injury is 03% regardless of the number of impairment resulting from that injury. If all 3 segments of the spine have been rated under DRE Categories, the physician doesn't add 03% per spinal segment. Only a maximum of 03% divided according to impact of pain on ADL is considered.

When considering adding pain impairment to a conventional rating, the conventional rating's components must not already incorporate pain (i.e., ROM causation is due to pain and not mechanical block) and, the medical justification for the addition of pain must be clear and well reasoned, thus substantiating the non-duplication of impairment.

On page 204 of Master The AMA Guides, Dr. Cocchiarella provides insightful guidance for all evaluating physicians:

1. Use the DRE method as the method of choice [for rating spinal impairment].

2. When determining what end of the range to use, determine whether the condition and its impact on ADL is consistent with that condition, or if the impairment has led to worse functioning. If ADL are more severely impacted than expected for the condition, use the upper end of the scale.

3. Document impairments that may have predated the injury and may have been aggravated as a result of the injury, e.g., spondylolysis, spondylolisthesis, and herniated disk without radiculopathy.

4. If pain is disproportionate for the condition, use the pain chapter for determining whether a qualitative and additional quantitative amount (1%-3%) should be combined with the DRE or ROM rating.

II. Supporting Vocational Modifications, Work Limitations or Restrictions

To determine if the employee's need for job modifications are truly based on an objective clinical foundation, the evaluating physician must analyze vocational task and provide an explanation of the impact of the medical impairment on vocational activities. Any determination of need for job modifications or QIW status requires a demonstrable foundation of clinical signs or other independent measurable abnormalities.

Emphasizing residual capacity over activity limitations, the physician determines the basis for any limitation of activities as supported by objective measurable and clinical information. Careful consideration must be given to the concepts of physical harm, current ability and perceived or actual tolerance for the inability to perform vocational activities. Physician should not lightly 'preclude' activities and functional loss not supported by an appropriate impairment level.

Some questions to consider:

* Risk (Harm): Q: Do the work activities pose a 'substantial risk' of significant harm to self or others? Risk is not an increase in previously present symptoms like pain or fatigue.

* Capacity - Current Ability: Q: Is EE physically able to perform essential job functions? Q: Are current strength, flexibility & endurance levels up to capacity, or are current abilities reduced due to deconditioning?

* Tolerance - Ability to endure sustained work activities. Q: Able to do specific tasks? Variable comfort level? Q: If any, what pychophysiological factors are affecting the individual's ability to tolerate greater levels of subjective symptomatology?

Job modifications or vocational rehabilitation must be substantiated by realistic facts and findings suitably identified in the formulation of the reasoned/logical medical opinion. The word 'prophylactic' can no longer be the proper support for job restrictions or modifications.

The basis for job modifications or work restrictions is not and has never been complaints. Work Restrictions (Disability) describe the inability of an individual to perform a specific or group of activities because of objective clinical/measurable impairment factors.

* Disability needs clinical corroboration and an objective base.
* Disability needs to consider risk from a clinical point of view; not from a subjective point of view, and Never because of the unfounded assertion of a prophylactic need.
* Disability becomes disability after a physician conducts a complete examination and demonstrates by his application of medical-legal principles that a functional limit exists.
* Disability exists when an individual or others would be placed at risk due to the presence of objective measurable impairment. Life choices, deconditioning and 'comfort level' should never be the sole support for impairment/disability.

The use of the word prophylactic is and has never been objective evidence capable of proving/disproving or supporting impairment or disability. Its misuse has only served to disguise the lack of material findings [measurable objective & clinical] and in turn create the facade of 'reasonable medical probability' when the only support were unconfirmed assertions of disability [subjective complaints]. It's never been a valid reason, as required by WCAB section 10606 (f) (f) (i) (k) (m) (n), for the support of impairment, disability or work modifications.

* Capacity - Current Ability: Q: Is EE physically able to perform essential job functions? Q: Are current strength, flexibility & endurance levels up to capacity, or are current abilities reduced due to deconditioning?

* Tolerance - Ability to endure sustained work activities. Q: Able to do specific tasks? Variable comfort level? Q: If any, what pychophysiological factors are affecting the individual's ability to tolerate greater levels of subjective symptomatology?

Job modifications or vocational restrictions must be substantiated by realistic facts and findings suitably identified in the formulation of the reasoned/logical medical opinion. The word 'prophylactic' can no longer be the proper support for job restrictions or modifications.

* The basis for job modifications or work restrictions is not and has never been complaints. Work Restrictions (Disability) describe the inability of an individual to perform a specific or group of activities because of objective clinical/measurable impairment factors.
* Disability needs clinical corroboration and an objective base.
* Disability needs to consider risk from a clinical point of view; not from a subjective point of view, and Never because of the unfounded assertion of a prophylactic need.
* Disability becomes disability after a physician conducts a complete examination and demonstrates by his application of medical-legal principles that a functional limit exists.
* Disability exists when an individual or others would be placed at risk due to the presence of objective measurable impairment. Life choices, deconditioning and 'comfort level' should never be the sole support for impairment/disability.

In a recent article the Honorable WCAB Judge Pamela W. Foust states:

"California Evidence Code section 140 defines the term, evidence, as "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." The phrase, substantial evidence, does not appear in the Evidence Code but definitions can be found in the case law. Probably the most widely accepted definition of substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion.

"Notwithstanding these considerations, substantial evidence is simply evidence that is believable. At the extreme ends of the spectrum, the concept will be easy to apply. If any reasonable person could read a medical report and find the doctor's conclusion to be persuasive, that's substantial evidence, assuming the report is based on accurate facts. On the other hand, if the doctor's opinion would insult the intelligence of any reasonable person or elicit the reaction that it could only happen this way on a cold day in hell, the report is not substantial evidence."

* LC 4620 - Medical Legal Report must be capable of proving/disproving a disputed medical fact. In determining whether a report meets the requirements of the subdivision, a WCAB Judge shall give full consideration to the substance, as well as form of the report as required by applicable statues and regulations.

"A worker's compensation judge's determination based on a medical report that is just a string of unsubstantiated conclusions is no better than judicial dart-throwing. For the medical report to be usable, it should clearly explain how the medical conclusions are reached and in a way that someone who is not a medical expert can understand." - Honorable Alan Eskenazi, WC Judge.

"Where the physician addresses the disputed medical facts, applies the case facts, applies his expertise, and renders a rational opinion, then the expert medical opinion has 'probative value' to assist the court to resolve disputed issues." - Honorable W. Ordas & N S Udkovick, WC Judges

* 8 CCR 10606 - The medical report must be clear as to any loss of work capacity, be it objective physical findings, disabling effects of pain, work restrictions or a percentage of pre-injury capacity functional loss. If there is no residual impairment (disability) the report should state so.

* 8 CCR 9793 (c) - "Comprehensive Medical-Legal Evaluation" means an evaluation of an employee which {a} results in the preparation of a narrative medical report prepared and attested to in accordance with LC 4628, any applicable procedures promulgated under LC 139.2 and the requirements of 8 CCR 10606, and {b} is either performed by a (QME), (AME), or (PTP).

'Pass Through' Reports - "The physician has not bothered to perform any reasoned analysis at all. There are merely unsupported conclusions with no basis. In this type of report usually one or two sentences of 'conclusions' [reasoned medical opinion?] are usually hallmarked by having no factual or medical reasons expressed for the conclusion." Honorable W. Ordas & N S Udkovick, WC Judges

New court decisions are sure to come; but guiding criteria can still be found in the following cases:

* Le Vesque vs. WCAB (1970) 1 Cal. 3d 627, 35 CCC 16
* Hegglin vs. WCAB (1971) 4 Cal 3d 162, 36 CCC 93.
* Minniear vs. Mt. San Antonio Community College District (1996) SBR257801, Cal. Comp Cases 1055
* Kuelen vs. WCAB (1998) 66 Cal. App. 4th 1089,1096
* Boyd v. WCAB (1997) 62 CCC 498
* Rachel Daly v. WCAB, Stanford Hospital 5 WCAB Rptr. 10,022

Next will be a review of DRE Rating Criteria.

Article by * Luis Perez-Cordero & Craig Andrew Lange, * Impairment & Disability Rating Specialists. They can be reached at pdrating@pacbell.net. *

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