Lexis.com subscribers can link to the cases cited below.
The AMA Guides generally disfavors grip loss as a measurement for rating a whole person impairment (WPI). (See AMA Guides Fifth Edition, page 508.) However, a series of recent WCAB panel decisions indicate that there may be circumstances when the grip loss metric is the most accurate tool for assessing an injured worker's (WPI). Use of the grip loss measurement generally results in a much higher permanent disability (PD) rating for the injured worker.
Recent Panel Decisions on Grip Loss:
In the case of Wai Chiu Li, Applicant v. County of Los Angeles, PSI, Defendant, 2012 Cal. Wrk. Comp. P.D. LEXIS 84; 2011 Cal. Wrk. Comp. P.D. LEXIS 580, the WCAB accepted the Agreed Medical Examiner’s (AME’s) analysis of Deputy Sheriff Li’s disability rating. Sheriff Li had fractured his arm in the line of duty. The AME measured his impairment based on grip loss (which rated at 12%WPI), after thoroughly explaining how Sheriff Li’s grip loss was a direct result of the industrial injury.
In the case of Barajas v. Fresno Unified School District, (NPD) 2012 Cal. Wrk. Comp P.D. LEXIS 7, the WCAB affirmed the AME’s determination that grip loss was the most accurate measurement of a gardener’s industrial injury, a fractured wrist. Again, the AME thoroughly explained how Mr. Barajas’ loss of grip strength (which rated at 12%WPI) was a direct result of the industrial injury.
However, the WCAB commissioners did not allow the grip loss metric in the case of Malhotra v. State of California (DDS); SCIF, (NPD) 2012 Cal. Wrk. Comp PD LEXIS 143; 2010 Cal. Wrk. Comp PD LEXIS 366. Mr. Malhotra, a library technician, suffered a laceration on the tip of his right small finger. The QME indicated that Mr. Malhotra “gave an honest effort in his grip strength testing.” The Judge used this statement by the QME as the basis for selecting grip loss as the applicable metric, (for an ultimate PD rating of 20%,) even though the QME determined that use of the grip loss metric was contrary to the constraints of the AMA Guides.
Common Threads in Grip Loss Cases:
After reviewing these cases, along with the other grip loss cases listed at the end of this article, it appears the WCAB focused on the following factors in considering whether or not the grip loss metric was appropriate.
1. Occupation of the Injured Worker: In Wai Chiu Li, supra, the Commissioners commented, “Indeed, throughout the Guides the authors emphasize the necessity of ‘considerable medical expertise and judgment,’ as well as an understanding of the physical demands placed on the particular patient. (AMA Guides, p.18).”
2. Type of Injury: A bone fracture may be more suitable for a grip loss measurement than an overuse cumulative trauma syndrome.
3. Body Part Injured: A severally lacerated arm or wrist may be more suitable for a grip loss measurement than a fingertip laceration.
4. Doctor’s ability to connects the dots: The AMA Guides explain that the grip loss measurement is not permitted when factors such as pain, prevent the injured worker from “application of maximal force” during the testing process. However, just because the doctor believes the injured worker has exerted maximum effort is not sufficient to support use of the metric. The doctor must ALSO provide an explanation as to how the injured worker’s grip loss was a direct result of the industrial injury. The Guides give the following example, “loss of strength due to a severe muscle tear that healed leaving a palpable muscle defect.” (p. 508, Section 16.8a)
5. Quality of explanation provided by evaluating physician: In the cases where use of the grip loss metric is affirmed, there were extensive pull quotes from the doctor’s opinion, (usually an AME,) as to why this metric was the most accurate rating.
6. Focus on accuracy, as opposed to equity or fairness: A doctor’s statement that use of the grip loss metric is the most accurate measurement of the injured worker’s impairment will have a much higher probative value, than a statement by a doctor that use of the grip loss metric is more fair and/or equitable.
7. Use of correct legal standard, “reasonable medical probability:” A doctor’s statement that he or she can state with reasonable medical probability that use of the grip loss metric is appropriate, is consistent with the legal standard set forth in Milpitas Unified v. WCAB (Guzman III), (2010) 75 Cal. Comp. Cases 837. In Guzman III, surpa, the 6th DCA stated that the physician's medical opinion "must constitute substantial evidence" of WPI and "therefore . . . must set forth the facts and reasoning [that] justify it." "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability.”
Reconciling the Differences Between the WCAB Panel Decisions:
By examining the common threads running through the each of the grip loss cases, it appears that there is a way to reconcile the three post-Guzman III decisions, listed above.
In both the Wai Chiu Li and Barajas cases, the worker suffered a serious fracture to a body part below the elbow. In both cases, the AME thoroughly explained how the injured worker’s grip loss was a direct result of the industrial injury and why this was the most accurate way to measure the impairment. (NOTE: An AME in these types of cases may hold more weight than a QME, since the AME is considered to be the “opinion of each party's physician.” See Green v. WCAB, (2005) 70 Cal. Comp. Cases 294 (2nd DCA) and Berry v. WCAB, (1969) 34 Cal. Comp. Cases 507.)
In the Malhotra case, the QME admitted that the injured worker used maximum effort while performing the grip loss test. However, there was no discussion by the physician connecting the injured worker’s loss of grip with the industrial injury. In fact, the QME did not feel grip loss was the appropriate measurement to use in this case and instead used decreased range of motion and altered sensation, resulting in a 2%WPI. It is not clear what the doctor’s basis was for not using the grip loss metric. Did he think the AMA Guides barred the grip loss metric, without exception? Or did he believe the laceration on Mr. Malhotra’s fingertip did not fall within the exceptions provided?
The Judge in Malhotra, held that since Mr. Malhotra had used maximum effort to perform the grip loss test, the AMA Guides did not bar use of that metric. She noted, “Dr. Colias [the QME] does not appear to be aware of the latitude he has.” She then drafted rating instructions based on grip loss resulting in a 20% PD rating.
The WCAB reversed the Judge in Malhotra, citing the en banc decision in Blackledge v. Bank of America, (2010) 75 Cal. Comp. Cases 613. In Blackledge, surpa, the WCAB thoroughly set forth the roles for each of the parties in the PD rating process. The doctor’s role is to determine the WPI. The Judge’s role is to make sure the medical evidence is accurate and that it constitutes substantial evidence. If it does, the Judge must utilize the information provided by the physician to calculate the PD rating. The WCAB stated, “In the absence of a physician’s WPI rating based on grip loss measurements, it is beyond the Judge’s authority to interpose this rating method.”
Listed below are additional cases that deal with the grip loss metric. The holdings are relatively consistent with the set of common issues listed above, and will hopefully be able to provide guidance for parties litigating a case where the grip loss metric is utilized.
Grip Loss Metric Affirmed:
Daly v. Ins. Co. of the State of Pennsylvania, (NPD) 2010 Cal. Wrk. Comp. P.D. LEXIS 620.
Sonoma County Office of Education v. WCAB (Sanchez) (2010) 75 Cal. Comp. Cases 1228 (1st DCA writ denied)
Hyatt Regency v. WCAB (Foote), (3rd DCA writ denied) (2008) 73 Cal. Comp. Cases 524.
Cortez v. Raymond Interior Systems, (NPD) 2007 Cal. Wrk. Comp P.D. LEXIS 213.
Grip Loss Metric Not Affirmed:
Deans v. Palmdale Water Dist. (NPD) 2011 Cal. Wrk. Comp. P.D. LEXIS 16.
Lopez v. WCAB (2011) 76 Cal. Comp. Cases 180. (4th DCA writ denied)
© Copyright 2012 LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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