Every year since California adopted use of the AMA Guides for determining permanent disability, we have received some ratings guidance from the DWC Annual Educational Conference.
The DWC Educational Conferences present DWC statements of guidance for Rating Permanent Disability. These sessions identify issues, and should help us establish a more consistent interpretation of those issues.
For 2020, although the Oakland session went forward, the Los Angeles session of the 2020 DWC Educational Conference was cancelled.
Let’s review some of the DWC/DEU rating guidance from prior years’ Educational Conferences.
To begin, the DWC stated at it’s 2009 Conference that the “general principle of the Guides is to have an objective basis for rating impairment.”
HEADACHES
The DWC reviewed rating for headaches in 2009 and 2014.
In summary, the DWC stated that the Guides:
- Allow up to 3% WPI for residual headaches if they are a result of head trauma.
- And raters should use impairment code 13.01.00.99.
The DWC also noted that when considering headache impairments, the term “objective basis’ is limited to confirmation of ‘head trauma.” The effects of a central nervous injury are rated by different methodologies from Chapter 13.
We at Bradford & Barthel note that without objective confirmation of Cranial Nerve V injury, headaches are not properly rated as the Trigeminal Nerve, from Table 13-11.
PAIN
Pain is considered a frequent and ongoing issue in ratings, which is evidence in the fact that it was discussed at multiple DWC Educational Conferences including 2008, 2009, 2013, 2016, and 2019.
In summary, the DWC stated that the Guides:
- Maximum 3% WPI add-on for one injury (regardless of how many body parts are affected).
- Pain cannot be added to 0% WPI.
- WPI reflects difficulty with ADL; to warrant an increase for pain, it must be “excess” pain, and must increase the burden of IW condition.
- AMA Guides page 10: Impairment ratings in the Guides already have accounted for commonly associated pain
- Physician determines normal of expected pain (AMA Guides page 566)
The DEU will assign pain to a body part if the physician does not designate the body part that the pain-add on is assigned to.
In 2013, the DWC/DEU addressed a rating issue related to LC 4660.1, for dates of injury 1/1/2013 and later, which no longer rate add-ons for sleep, sex or psyche.
This prompted the question, “Is a pain add-on for pain with sleeping or sex ratable?”
The DEU’s position was that one should rate the pain unless the pain add-on is specifically only for activities of sleep or sex.
Lastly, we at Bradford & Barthel note that the 3% maximum for an injury would apply regardless of the number of medical evaluators involved.
Pain and DRE Ratings
The DWC reviewed pain and DRE ratings at its conferences in 2009 and 2013.
In summary, the DWC said that:
- Increases in DRE Range should be reflective of impact on ADLs in “excess” of pain component already incorporated into WPI values from the AMA Guides.
- AMA impairments account for common pain
- Must increase burden in excess of pain component already incorporated
- Physicians should provide rationale for findings
We at B&B note that although not explicitly stated, the DWC/DEU indicates DRE range increases are assessed in the same manner as other pain increases – “must increase burden in excess of pain component already incorporated” into WPI values. The maximum pain increase is 3% WPI for any one injury, prompting the question of whether that should include DRE range increases?
Effects of Treatment
The DWC discussed this at the 2008 and 2019 educational conferences.
In summary, the DWC said that:
- The use of medication by itself does not allow an automatic add on for “effects.”
- AMA Guides page 20 refers to situations when “pharmaceuticals themselves may lead to impairments”.
Let’s take a closer look at Chapter 2, page 20 of the AMA Guides, which says:
Adjustments for Effects of Treatment or Lack of Treatment.
In certain instances, the treatment of an illness may result in apparently total remission of the person’s signs and symptoms. Examples include the treatment of hypothyroidism with levothyroxine and the treatment of type 1 diabetes mellitus with insulin. Yet it is debatable whether, with treatment, the patient has actually regained the previous status of normal good health. In the instances, the physician may choose to increase the impairment estimated by a small percentage (eg, 1% to 3%).
In some instances, as with organ transplant recipients who are treated with immunity-suppressing pharmaceuticals or persons treated with anticoagulants, the pharmaceuticals themselves may lead to impairments.
We at Bradford & Barthel note that pursuant to page 20 of the AMA Guides, the application of this adjustment would be rare for work-related injuries.
LC 4660.1 and DOI on or after 1/1/2013 – Add-Ons
The DWC discussed this particular issue in 2013 and 2018.
In short, the DWC said that there should not be any increases for sleep dysfunction, sexual dysfunction or psychiatric disorder arising out of a compensable physical injury. They did note two exceptions for psychiatric impairment, which are:
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- Victim of or direct exposure to a violent act.
- Catastrophic injury – including a severe head injury.
In summary, it’s important to note that:
- LC 4660.1 precludes Almaraz/Guzman considerations for sleep, sexual dysfunction. (See the case of Torres vs. Greenbrae Management.)
- Rate the pain unless the pain add-on is specifically only for activities of sleep or sex.
Tim Mussack, the author of this blog post, manages Bradford & Barthel’s AMA Guides & Ratings Department. This division analyzes doctor reports to determine whether the physician has properly applied the AMA Guides. Mr. Mussack and his associates have analyzed over 20,000 reports and identified tens of millions of dollars in potential savings for clients. For further information, see https://bradfordbarthel.com/areas-of-practice/ama-analysis-rating/. If you have any questions about rating PD, please feel free to reach out to Tim at tmussack@bradfordbarthel.com or 916.569.0790.
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