Further Reflections on the Almaraz-Guzman Calif. WCAB En Banc Decision

Further Reflections on the Almaraz-Guzman Calif. WCAB En Banc Decision

Many of us have started to reflect on how to respond as an AME/QME/Treater to the Almaraz-Guzman WCAB En Banc Decision. Here are some initial thoughts, some of which are not completely original as I have received input from others.

I urge you to read the full Almaraz-Guzman WCAB En Banc Decision which can be obtained at http://www.csims.net/pdf/Almaraz%20-%20Guzman%20en%20banc.pdf.

The WCAB held, in summary, that: (1) the AMA Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability (my underline); and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

The WCAB expressly proclaimed that their holding does not open the door to impairment ratings directly or indirectly based upon any Schedule in effect prior to 2005, regardless of how “fair” such a rating might seem to a physician, litigant, or trier-of-fact (WCAB Judge).

A party may rebut a scheduled impairment rating based on the AMA Guides by showing that this impairment rating would result in a permanent disability award that would be inequitable and not commensurate with the disability the employee has suffered. Ordinarily, this showing will be accomplished through the opinions of treating or evaluating physicians who, using methodology in addition to and/or independent of the AMA Guides, conclude that the injured employee’s impairment is greater than – or lesser than – the impairment rating called for by the Guides. In arriving at an impairment opinion that differs from the impairment rating called for by the AMA Guides, a physician may invoke his or her judgment based upon his or her experience, training, and skill.

As the evaluating physician, you can expect the applicant attorney to ask you if the impairment is equitable, fair and commensurate with the disability. The defense attorney/claims examiner will insist on your justification for rebutting the AMA Guides.

Thus, I interpret the Almaraz-Guzman Decision to mean we are not to go back to the “old” system; we are still supposed to use the AMA Guides 5th Edition, but the physician is now given more leeway to use other methods and to try to better match the impairment to the disability. It is critical that the physician provide justification to rebut a traditional, literal or standard AMA Guides impairment rating.

Therefore, a physician may depart from the specific recommendations of the AMA Guides and draw analogies to the Guides’ other chapters, tables, or methods of assessing impairment. Also, in evaluating impairment in a manner outside of or in addition to that prescribed by the AMA Guides, the physician may consider other generally accepted medical literature or criteria. Such additional or alternative literature could include, but would not necessarily be limited to, other AMA publications or the publications of other established medical organizations.

Moreover, in reaching an impairment opinion that is not based on a strict application of the AMA Guides, a physician may consider a wide variety of medical and non-medical information. For example, the AMA Guides analyzes whether an injured employee’s injury impairs his or her ability to perform activities of daily living, excluding work. Therefore, when a physician believes that an impairment rating based on the AMA Guides would not provide a fair and accurate measure of the injured employee’s degree of impairment, then the physician may assess how the permanent effects of the employee’s injury impair his or her ability to perform work activities, as well as assess the medical consequences of performing certain work activities.

In addition, a physician may take into account pertinent diagnostic studies, such as functional capacity and rehabilitation evaluations. Finally, if the employee has been evaluated by a vocational rehabilitation expert, the physician may review and consider the vocational specialist’s opinion regarding what jobs the employee might be able to perform and what effect the injury may have on his or her ability to earn.

The WCAB emphasizes that their decision does not permit physicians to deviate from the AMA Guides simply to achieve a more desirable result; (2) the reasons for such a deviation must be fully explained and the alternative methodology set forth in sufficient detail so as to allow a proper evaluation of its soundness and accuracy; and (3) therefore, within the report, an evaluating physician is expected to provide a full medical evaluation, analysis of the medical findings with respect to the patient’s life activities, and comparison of the results of analysis with the impairment criteria.”

The WCAB does not suggest that this approach to evaluating impairment is perfect. The reality is that, at present, there is no simple method by which evidence regarding an employee’s medical condition can be combined with other evidence to calculate the percentage to which an injured employee is occupationally impaired.

Nevertheless, just because there is no easy solution does not mean that when a rating called for by the AMA Guides does not provide a fair and accurate measure of the injured employee’s impairment and does not truly and accurately reflect his or her loss, we may turn a blind eye to this fact and deny the employee his or her just compensation.

Approaches to Impairment Rating post Almaraz-Guzman

The physician evaluator must first evaluate using the AMA Guides and then must explain why he/she feels the Guides-based rating is inaccurate (either too low or too high, depending on the circumstances). Only after the Guides have been rebutted can the physician consider alternative evaluation approaches.

More specifically, if you feel that the permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability, then you as a physician are tasked to offer an alternative impairment rating using good judgment based upon your experience, training, and skill (please see the above noted comments from the Almaraz-Guzman Decision from the WCAB).

I have some initial practical solutions as to how to deal with this change in the California Workers’ Compensation playing field. Please understand that I am not advocating or promoting anything but to some extent I am “thinking out loud” about some possible approaches.

Functional Capacity Evaluations

Regarding Functional Capacity Evaluations (FCEs), Functional Capacity Assessments (FCAs), and work capacity Assessments (WCAs); they can be extremely valuable in determining an individual’s loss of work and self care capacity and retained abilities when that individual gives a full effort during testing.

FCEs/FCAs/WCAs tend not to be very useful with individuals who do not provide a full effort secondary to fear of reinjury, psychiatric comorbidity and chronic pain behavior other than to document inconsistency or lack of a full effort.

Injured Workers with a Chronic Pain Syndrome

At least in my practice, I see quite a number of very decent patients who have developed a chronic pain syndrome and frankly do not provide a “full effort” during examination. Subjective complaints may be high while objective correlates may be low or at least not match the degree of complaints.

It is much harder with these individuals to match up disability and impairment. As noted above, the FCE/FCA/WCE is not very useful. There may be legitimate psychiatric comorbidity that reasonably should be evaluated by a forensic AME/QME psychiatrist or psychologist.

The way I handle these cases is to describe what I believe to be the true “physical” disability but I do not hesitate also to note that the patient has a chronic pain syndrome and that “non-physical” factors (psychiatric comorbidity) in concert with the “physical” factors may impede or prevent return to the open labor market and limit future earning capacity.

Upper Extremities

Describing disability or loss of work capacity is actually quite easy by listing work restrictions and/or loss of work capacity. As a physician you can describe a percentage loss of work capacity for the following tasks and others (Table 1).

Table 1

Overhead work
Work at or above shoulder level

Work below shoulder level
Torquing
Lifting
Carrying
Reaching
Pushing
Pulling
Grasping / Gripping
Feeling / Fingering
Pinching
Handling / Holding
Fine manipulation
Keyboarding

Balancing
Working at heights
Climbing ladders
Climbing stairs
Walking on uneven terrain
Standing / Walking
Crouching
Sitting
Twisting
Bending
Squatting
Kneeling
Stooping
Working around moving machinery
Driving
Spine flexing, extending, bending, and rotating

Calculating Impairment Based on ADL Deficits

One approach would be to calculate the impairment rating based on loss of ADLs and loss of work capacity. Under the AMA Guides, the upper extremity impairment can be up to 60% WPI per limb. If the individual had lost 25% of preinjury capacity in one upper extremity for lifting, carrying, pushing, pulling, grasping, gripping or manipulation, the physician evaluator could note that taking into account the true impact on ADLs and the ability to function at work, the most accurate assessment would flow from the use of Table 16-3 (see p. 439 of AMA Guides 5th Edition) where each upper extremity rates at 15% WPI (i.e., 25% of 60%). Per the Combined Values Chart, 15% WPI for the RUE combines with 15% WPI for the LUE for a 28% WPI. This approach is justified and fully supported by the Almaraz-Guzman en banc decision. The physician evaluator should not accept this impairment rating carte blanche though – it still has to be reasonable and justified clinically.

Another Method would be to analogize using other Tables from the AMA Guides. If you go to Table 13-22 (see p. 343 of AMA Guides 5th Edition), Criteria for Rating Impairment Related to Chronic Pain in One Upper Extremity which is functionally based and if you look at each Class from 1 – 4, you could place the injured worker in the appropriate Class 1 – 4.

Likewise, when both upper extremities are affected, you could use Table 13-17 (see p. 340 of AMA Guides 5th Edition), Criteria for Rating Impairment in Two Upper Extremities which is functionally based and if you look at each Class from 1 – 4, you could place the injured worker in the appropriate Class 1 – 4.

Using this method does not exclude using the AMA Guides in a traditional or literal fashion for the upper extremities for the various parts (amputation, shoulder, elbow, wrist, fingers, nerve compressions, etc.). In fact, based on Almaraz-Guzman, it seems that we should use the AMA Guides as per usual unless the physician believes that the impairment provided is not commensurate with the disability.

Remember you cannot go outside the AMA Guides just to get a higher impairment, it has to be justified and make clinical sense and it has to tie the disability to the impairment.

For the individual who has a shoulder, elbow or wrist disability (with or without surgery), the injured worker may have a good outcome from treatment or surgery and even return to work, but the individual may still have symptoms along with both work and ADL limitations. By analogy, consider using Table 16-27 for a distal clavicle excision (even if there wasn’t one) which provides a 10% upper extremity impairment and a 6% WPI. This would be combined with any range of motion loss or other findings.

If there is loss of range of motion, using a traditional approach, you could not also use a strength loss, but you might choose to do so if you felt that it was medically reasonable and doing so would make the impairment more closely commensurate with the disability. For example, if you listed a 5% (strength deficit) for each shoulder movement, it would bring the upper extremity impairment up to 12% and the WPI to 7%.

If the injured worker has had a negative (less than good) outcome from treatment or surgery, and the  impairment is not commensurate with the disability, there are several possible approaches. You could consider several methods including the percent loss of work capacity noted above, use of one of the two Tables noted above (Table 13-17 or Table 13-22), or use of another AMA Guides Table that provides an impairment that is in keeping with the disability.

For an upper extremity amputee, the individual may have a concomitant neuropathic pain problem and be unable to wear a prosthesis. Such a disability is much greater than just having an amputation. Consider using not just the amputation impairment but also the neuropathic pain component using Table 13-22 (see above).

There are a number of areas that the AMA Guides does not recommend using grip loss. If you feel that grip loss is legitimate, you should consider using it.

I was not going to include the following but a very astute claims person told me that he would not have a problem with it if it resulted in an equitable impairment that could provide a basis for settling a claim. For an individual who has normal range of shoulder motion at rest but for whom the physician describes a prophylactic limitation of no work over shoulder level, one could consider using that limitation (say 90 degrees for abduction and flexion) as the ROM limitation when calculating the impairment rating. This particular example is clearly outside the AMA Guides system, so if used, the physician will have to cogently and clearly justify it as being reasonable and serving to better approximate the disability with the impairment.

Spine

Many physicians dislike the ROM Method and, after all, the DRE is the Method of choice per the AMA Guides. The Problem with the DRE Method (Table 15-3 Criteria for Rating Impairment Due to Lumbar Spine Injury - see p. 384 of AMA Guides 5th Edition) has always been that if you don’t have surgery and if you don’t have a fusion/loss of motion segment integrity or a fracture, you cannot get up to the higher levels despite having a significant disability. I believe you can now do so by analogy and per the instructions in Almaraz-Guzman.

I would feel justified going to a DRE IV or V if there is radiculopathy with or without alteration of motion segment integrity; significant lower extremity impairment is present as indicated by atrophy or loss of reflex(es), pain, and/or sensory changes within an anatomic distribution (dermatomal), or electromyographic findings.

Assuming ADLs are negatively affected, and you chose a DRE V, that would give you 28%. These individuals may well deserve an additional 3% for chronic pain from Chapter 18, Pain. This would bring the total to 31% WPI. Taking this further, you can then combine by using Table 15-6 Rating Corticospinal Tract Impairment. The corticospinal tract is part of the spinal cord but, by analogy, I feel you can reasonably use this for nerve root involvement. As you can see in Table 15-6 (see pp. 396-397 of AMA Guides 5th Edition), this can legitimately provide significant additional impairment.

The physician evaluator needs to focus on the impairment rating being commensurate with the disability. Given that the WCAB has clearly not directed use of the prior system of describing disability, the physician evaluator should avoid trying to connect the current impairment to prior descriptors in the old system but there is nothing wrong with using terms such as a loss of 50% of the preinjury lifting capacity or a limitation to sedentary work. These are universal terms that are accepted medically.

Basically, the physician should describe the loss of work capacity as part of the disability. Table 2 below is the Physical Demand Definitions from the Dictionary of Occupational Titles from the Department of Labor.

Physical Demand Definitions from the Dictionary of Occupational Titles (Department of Labor)

Sedentary Work
– Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
Light Work - Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
Medium Work - Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.
Heavy Work - Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Medium Work.
Very Heavy Work - Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Heavy Work.

There may be another Table in a different Chapter that provides a reasonable and supportable impairment by analogy. For example, Chapter 6, The Digestive System. Table 6-9 (see p. 136 of AMA Guides 5th Edition) Criteria for Rating Permanent Impairment Due to Herniation (hernias), Class 2 mentions “frequent discomfort, precluding heavy lifting but not hampering some activities of daily living.” There could be a scenario where an individual without a hernia has similar restriction and this could be used by analogy.

Lower Extremities

Describing disability or loss of work capacity is actually quite easy by listing work restriction and/or loss of work capacity (see Table 1). Under the AMA Guides, the lower extremity impairment can be up to 40% WPI per limb.

If the individual had lost 25% of preinjury capacity in one lower extremity for work activities, the physician evaluator could note that taking into account the true impact on ADLs and the ability to function at work, the most accurate assessment would flow from the use of Table 17-3 (see p. 527 of AMA Guides 5th Edition) where each lower extremity rates at 10% WPI (i.e., 25% of 40%). Per the Combined Values Chart, 10% WPI for the RLE combines with 10% WPI for the LLE as a 19% WPI.

This approach is justified and fully supported by the Almaraz en banc decision. The physician evaluator should not accept this impairment rating carte blanche though – it still has to be reasonable and justified clinically.

For the lower extremities, an alternative method by analogy is to use a functional approach as would be the case by using Table 13-15 Criteria for Rating Impairments Due to Station and Gait Disorders (see p. 336 of AMA Guides 5th Edition). This does not work in every situation but many lower extremity problems affect gait and station.

Using this alternate method by analogy does not exclude using the AMA Guides in a traditional or literal fashion for the lower extremities for the various parts (amputation, hip, knee, ankle, foot, nerve compressions, etc.). In fact, based on Almaraz-Guzman, it seems that we should use the AMA Guides as per usual unless the physician believes that the impairment provided is not commensurate with the disability.

Another way to approach spine and lower extremity disability if the injured worker is sedentary with the use of an assistive device, is by analogy using Table 17-5, Lower Limb Impairment due to Gait Derangement (see p. 529 of AMA Guides 5th Edition).

For plantar fasciitis, the AMA Guides provides a 0% impairment rating. It seems that using Table 13-15 or Table 17-5 (see above) would be a reasonable approach when this problem legitimately affects work ability and causes disability.

For a hip or knee problem, there is Table 17-33, 17-34, & 17-35 (see pp. 546-549 of AMA Guides 5th Edition) which include total joint replacement that could be considered even when there has not been a joint replacement surgery.

For a lower extremity amputee, the individual may have a concomitant neuropathic pain problem and be unable to wear a prosthesis. For the lower extremity, this may leave the individual wheelchair bound. In this situation, consider using not just the amputation impairment but also the neuropathic pain component using Table 13-15 (see above).

For Chapter 17, The Lower Extremities, Table 17-2 (see p. 526 of AMA Guides 5th Edition) Guide to the Appropriate Combination of Evaluation Methods, the AMA Guides tells us which Evaluation Methods can and cannot be combined. If this results in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability, then the physician should consider using all the Evaluation Methods that would provide a reasonable impairment result.

Brain Injury

In Chapter 13, The Central and Peripheral Nervous System, for a brain injury, according to the AMA Guides, when injury or illness affects the CNS, several areas of function may be impaired. There are four categories to be evaluated: (1) state of consciousness and level of awareness, whether permanent or episodic; (2) mental status evaluation and integrative functioning; (3) use and understanding of language; and (4) influence of behavior and mood. The motor and sensory systems, gait, and coordination are evaluated once the four categories of cerebral impairment have been determined.

According to the AMA Guides, the most severe of these four categories should be used to determine a cerebral impairment rating. With Almaraz-Guzman, there is an argument to be made that if this results in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability, then the physician should consider using all of the four categories that would provide a reasonable impairment result. In other words, instead of taking only the most severe (highest impairment) of the four categories; combine them instead.

Remember, the physician evaluator should not accept any impairment rating carte blanche – it still has to be reasonable and justified clinically.

Combining

The AMA Guides does not allow combining certain impairments, i.e., you cannot use strength when there is a range of motion (ROM) loss or a compression neuropathy. There is an argument to be made that Almaraz-Guzman gives the physician latitude to consider combining different impairments (i.e., a loss of strength even with a loss of ROM or with a compression neuropathy) that provide a fair, equitable and commensurate impairment to the disability even when the AMA Guides says you cannot combine the impairment values.

In general, the AMA concept and use of combining lowers the impairment rating (15% + 15% = 28%) and prevents getting over a 100% impairment and even makes it hard to get to 100%. There is probably an argument (which has already been made by the applicant bar) that combining may unfairly lower the impairment such that it is not fair, equitable or commensurate with the disability. It would seem that the physician can make the argument that various impairments should not be combined but rather added.

When this situation is the case, it will be necessary to justify such opinions by showing that adding rather than combining results in the impairment being fair, equitable and commensurate with the disability when doing so.

Summary

This document is a work in progress. I am not recommending or promoting any of the above ideas and concepts but provide them for consideration and discussion.

I have shared these ideas with you so I would ask in return that you write back to me via email (stevenfeinberg@hotmail.com) with your thoughts, additions, criticisms, ideas, etc.

 Excerpted from an article that originally appeared on http://www.feinbergmedicalgroup.com/. Reprinted with permission.

Comments

Anonymous
Anonymous
  • 05-04-2011

This is a great overview of the complex impairment rating system from the medical perspective. Functional capacity evaluations and functional impairment are areas that this article that requires further explanation. Several attorneys believe the FCE is one way to find the true impairment. But the AMA differs from the California WCAB decisions and the true impairment continues to broaden in range. A better solution is to utilize the California Functional Capacity Evaluations by the published guidelines and adopted by Safety Works Medical Inc.