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Workers' Compensation

California: Questions Doctors Ask Us

By Hon. Robert G. Rassp

Highlighting California law and the AMA Guides Fifth Edition

DISCLAIMER: The opinions expressed by the author in this article are those of the author and are not those of the California Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board.

The author has conducted many continuing medical education programs (CME) over the years and is a member of the faculty for the California Orthopedic Association, California Society of Industrial Medicine and Surgery, Examworks, WorkCompCentral, and other CME and MCLE providers. At the conclusion of each continuing medical education program, regulators for certification of the programs require a Question-and-Answer period where attendees can ask the expert panelists questions about the content of the program. Inevitably, time runs out and the program ends with many questions not being addressed by the expert panelists. Many questions are written by the attendees via a text to the moderator of the program while other questions are scribbled on a piece of paper and handed to the moderator. Sometimes you can read the doctor’s handwriting.

The purpose of this article is to answer the questions doctors ask in their continuing medical education seminars. This article is intended to be part of the essential dialogue between the medical profession and the legal profession concerning physician reporting in workers’ compensation cases. Remember, physicians care about their patients—a patient’s medical outcome is extremely important to a physician and is why people become doctors in the first place. In our workers’ compensation context, physicians get frustrated because they seldom know about the legal outcome of cases for which they wrote reports, either as treating physicians or as medical-legal evaluators.

There is a movement afoot in the California DWC administration to address the issue of developing a formal feedback mechanism to the medical community concerning the quality of medical-legal reporting of licensed Qualified Medical Evaluators. Why does a particular report constitute substantial medical evidence while others do not? What is missing from reports? Calif. Labor Code section 139.2(d)(2) requires a level of quality control for medical-legal reporting and monitoring of that by trial judges and the Appeals Board. Quality control begins with a dialogue and this article starts that discussion.

The questions below are taken from the CME programs and are edited to make sense of each call of the question. The names of the doctors who asked these questions have been redacted since no one wants to embarrass anyone.

  1. Would you agree that the AMA Guides (Fifth Edition) spell out the requirements for numerous diagnostic testing in order to provide a WCJ in many areas particularly orthopedic (spine, UE, LE) and that failing to get these studies by the QME fails substantial medical evidence?

Actually, Section 2.6 of the AMA Guides Fifth Edition along with Cal. Code of Regulations, title 8, section 10682 and Labor Code section 4628 spell out the requirements for a medical report to constitute substantial medical evidence. One of the elements in that rubric is to review all diagnostic studies and comment on them. Remember, ratings under the AMA Guides are based on objective medical evidence that includes a review of diagnostic studies. If in the clinical judgment of the medical-legal evaluator that a diagnostic study should be conducted as part of the medical-legal evaluation process, then that study should be ordered by the QME and made part of the case analysis requested by the parties.

Most QME advocacy or joint letters tell the QME that they are pre-authorized to order diagnostic testing such as MRI or CT scans, x-rays in orthopedic cases; blood tests, urinalysis, or other tests requested by a physician in internal medicine. If a QME is not pre-authorized to conduct testing, then they should request authorization to do so before a final report is issued. One problem we see as judges is when a QME issues a Request for Authorization (RFA) for diagnostic studies. A requirement for an RFA applies only to treating physicians pursuant to Labor Code section 4600 and Cal. Code of Regulations, title 8, section 9785, which are outside the purview of a medical-legal evaluator. Medical-legal evaluators do not issue RFAs in these cases.

If a medical-legal evaluator is not pre-authorized to conduct diagnostic studies, then the evaluator must write a letter to the parties requesting authority to do so. A QME should examine the patient, review records, read the advocacy letters if any and write a preliminary report requesting authorization to order the studies and write a supplemental report upon receipt and review of those studies. Counsel can avoid the delay associated with this if there is language in counsel’s advocacy letter that states, “You are authorized to order any diagnostic testing in this matter that you believe is clinically necessary for you to determine the medical-legal issues presented in this case, except for any that requires hospitalization.”

  1. I don’t understand the diabetes/leg amputation case (where a carpenter steps on a rusty nail at work, did not know he was diabetic, and eventually has a below-knee amputation which rates a 28% WPI under Table 17-32, page 545). Isn’t it appropriate to say that the Applicant would not have needed an amputation if they did not have pre-existing diabetes—is it not appropriate to apportion to the diabetes?

This is a classic example of the issue of causation of permanent disability. But for stepping on a rusty nail at work, the Applicant would not have lost his leg when and as it occurred. So the amputation was precipitated by a work-related injury. The cause of the permanent disability was the injury and not the diabetes. Case law has long held that you take an Applicant the way you find him. See Ballard v. Workers’ Comp. Appeals Bd. (1971) 3 Cal. 3d. 832, 92 Cal. Rptr. 1, 478 P. 2d 937, 36 Cal. Comp. Cases 34; Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal. 3d 159, 193 Cal. Rptr. 157, 666 P. 2d 14, 48 Cal. Comp. Cases 566.

This example is a very difficult case, and an argument can be made that the diabetes also caused the amputation and perhaps 50% of the impairment (28% WPI) should be apportioned to the non-industrial diabetes. This argument would be similar to the case where a non-industrial ear condition that was aggravated by noise exposure at work resulting in total deafness in that ear and the Court found that permanent disability was apportioned between the industrial and non-industrial causes. See ACME Steel v. Workers’ Comp. Appeals Bd. (Borman), (2013) 218 Cal. App. 4th 1137, 78 Cal. Comp. Cases 751. See also City of Petaluma v. Workers’ Comp. Appeals Bd. (Lindh) (2018) 29 Cal. App. 5th 1175, 83 Cal. Comp. Cases 1869, where a police officer’s pre-existing left eye ischemic optic neuropathy was aggravated by his police dog striking his head repeatedly during a training exercise, resulting in total blindness in the left eye, was held to be 85% non-industrial and 15% industrially related. The court in Lindh said: “We perceive no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.”

Diabetes is frequently ignored by patients because, like hypertension, there is a denial of symptoms. The symptoms of Type 2 diabetes include thirst, frequent urination, hunger, fatigue, blurred vision, weight gain or loss; poor wound healing. These symptoms may or may not occur and when they do, they can be elusive as to the cause. The Applicant in the case example is a typical employee who may not have health insurance or if he did he never used it. Many workers live with diabetes without knowing they have the condition, even when it is severe. Diabetes may be hereditary but, so far, science has not determined if there is a genetic link and there is no known genetic genotype to describe diabetes.

So an AME in the case involving the carpenter who stepped on a rusty nail opined no apportionment for the below knee amputation because the direct cause of the amputation was the industrially related specific injury itself—stepping on a rusty nail at work. When examining risk factors, medical-legal evaluators should not apportion to the risk factor (in this case diabetes) that makes a worker at greater risk of suffering a disability, they need to apportion to what caused the disability. The AME also opined that the employer was responsible for getting the non-industrial diabetes under control in order to properly treat the wound caused by the rusty nail and the resulting amputation of the leg. This example reflects the difficulty doctors have in determining apportionment of permanent disability since cogent arguments can be made by both sides for and against apportionment and the judge has to determine which conclusions constitute the most persuasive, reliable, and convincing upon which to base an award of benefits. This case was also a final examination question for law students at Pepperdine Caruso School of Law during the 2021 semester.

  1. When rating lower extremities are you suggesting that every abnormality should be rated? Strength and atrophy? A Table 17-33 total knee rating and atrophy/weakness?

The simple answer is “yes.” In order for a medical-legal report to constitute substantial medical evidence, the evaluating physician should provide all ratable impairments. The next step is to determine if those impairments are caused by the industrial injury. The problem is whether the physician should apply Table 17-2, the cross-usage chart that eliminates what the authors of Chapter 17 of the AMA Guides characterize as “overlap and duplication.” The problem with Table 17-2 is that it does not account for loss of work abilities—it only addresses lower extremity impairments that cannot be rated together. There is no explanation of why.

There is no explanation in the text in the AMA Guides why certain lower extremity impairments cannot be rated together. There is no discussion about why a specific WPI rating classification cannot be rated with another. There is no equivalent Table 17-2 cross-usage chart in the upper extremity Chapter 16 of the AMA Guides. So for the purpose of a medical-legal evaluation, a physician can rate gait derangement under Table 17-5 and atrophy under Table 17-6, combine them using the Combined Values Chart (or not—more on the Kite case later) and allow for each WPI rating to apply despite Table 17-2. In fact, most AMEs and QMEs ignore Table 17-2 which is best practices because it is so arbitrary since there is no explanation of the rationale for it.

  1. I always have a concern about the spread of the point system for a total knee replacement WPI rating from Tables 17-35 and 17-33. So if the points add up to between 50 and 84, the patient gets a 20% WPI, if the patient has 49 points they get a 30% WPI. That one point is a 10% difference in a WPI rating! How do we address this issue?

So the response is that the higher the points, the lower the WPI rating. Out of 100 points that are added, 50 of them account for pain and functional loss. So a QME can manipulate the scoring by raising or lowering the pain/functional points to reflect more accurately the individual’s total knee replacement result—good, fair, or poor. The question here is, did the patient have a good, fair, or poor result for the total knee replacement? Is 49 points for pain/functional loss more accurate than 50 points? If so, why?

  1. What are some of the more common problems that judges see in psyche PQME reports and why?

The most common problem is that QMEs do not apply the criteria in Rolda correctly. See Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion). That is because a “Rolda analysis” is like a ping-pong ball going back and forth between the judge and the QME. Many great QMEs in psyche cases are able to cover the Rolda analysis by using an “if and then” approach. So they would say in their report: “If the judge finds these events to be actual events of employment, and if the judge finds each of these events good faith, non-discriminatory, lawful personnel actions, I would opine that each event has caused ___% of the DSM diagnosis, adding up to 100% causation of the DSM diagnosis.” Then there has to be a separate analysis of the causation of permanent disability after indicating the GAF score and equivalent WPI rating if the injured worker is MMI on a psychiatric basis. Many psyche QMEs confuse causation of injury which requires the Rolda analysis with causation of permanent disability (the GAF-WPI rating and apportionment, if any, to industrial and non-industrial factors).

In summary, the Rolda analysis requires:

  1. Is there is DSM diagnosis (which can be from the DSM-5 and is determined by the doctor)?
  2. Are actual events of employment the predominant cause of the DSM diagnosis? That is a doctor’s determination.
  3. What are the actual events of employment? The judge determines what are actual events of employment. The doctor has to tell the judge what the doctor believes are actual events of employment and are not a figment of the Applicant’s imagination.
  4. Are any of the actual events of employment personnel actions? This is determined by the judge.
  5. Are personnel actions in good faith, lawful, non-discriminatory? This is determined by the judge.
  6. Do the good faith, lawful non-discriminatory personnel actions substantially cause (35-40%) the DSM diagnosis? This is determined by the doctor.

This author has recommended that a judge conduct a discovery hearing before a case is referred to a psychiatrist or psychologist to make the medical determinations. It is easier for a judge to decide what constitutes actual events of employment and whether any of them are personnel actions and, if so, which are in good faith, etc. and which are not. The judge would order the Summary of Evidence from witness testimony to be sent by the parties to the QME in psyche to review along with the judge’s findings concerning whether any personnel actions occurred and, if so, whether they were in good faith or not. Plus the doctor would have to consider any non-industrial causation of a DSM diagnosis.

  1. What is an Order Suspending Action? Why did I receive one? What did I do wrong?

An Order Suspending Action (OSA) is issued by a workers’ compensation judge when there is something wrong with a settlement document, either Stipulations With Request for Award or a Compromise and Release agreement. The problem could be clerical, for example, where a party fails to sign the document. Or the problem could be substantive, addressing deficiencies in the settlement itself. The reason a QME or PTP would receive a copy of an OSA is usually because something is wrong with the physician’s conclusions about the WPI rating, if there is one, that formed the basis of a settlement.

One example is when there is a 0% Stipulations With Request for Award where the treating physician or QME writes in their MMI report that there is no permanent impairment as a result of an industrial injury. In fact, in that case there is ratable impairment that the physician failed to recognize. Usually this happens when the injured worker returns to his or her usual and customary occupation after an accepted injury and the job duties are arduous. Many physicians, especially old school ones, think that releasing someone to regular duties implies there is no permanent disability. That assumption is not legally or medically correct if there are permanent objective medical findings.

So judges see cases like this with a submitted proposed settlement for approval where the QME rates 0% WPI and there probably is some ratable impairment that the QME failed to identify. This has occurred with shoulder injuries where there is a distal clavicle resection arthroplasty and, despite the surgery, the QME opines there is no permanent impairment because the shoulder range of motion is normal, muscle strength under Table 16-35 is normal, and the injured worker has returned to the same job with no restrictions. The distal clavicle resection arthroplasty is a diagnosis based WPI rating of 10% upper extremity or 6% WPI regardless of the outcome of the surgery.

Judges also see cases where there is ratable loss of motion of either a shoulder or lumbar spine and the measurements are not correctly interpreted by the QME as ratable. A very common mistake occurs when a QME measures thigh and calf circumferences and at least 1 cm of atrophy is measured. That too is ratable under Table 17-6. Another common mistake is where there is loss of cartilage interval in the knee joint and the QME fails to apply Table 17-31. Judges see cases where a 0% Stipulation is based on these errors in ratings and in Compromise and Release agreements where the parties state that the QME found no WPI impairment ratings. Judges are trained to catch these mistakes, and all have at least one recent edition of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) to assist them.

So the reason a QME receives a copy of an OSA is because chances are the parties are going to request a supplemental report addressing the judge’s concerns about the rating for permanent disability.

Also, a treating physician’s conclusions in an MMI report carries the same weight of evidence and consideration by a judge concerning substantial medical evidence as the conclusions of a QME. However, an agreed medical examiner essentially becomes both side’s doctor and the doctor’s conclusions are generally binding on both parties. However, an AME’s conclusions must also constitute substantial medical evidence in order to support a judge’s award of benefits. There are very rare occasions when a judge will award benefits based on a treating physician’s conclusions over an AME’s conclusions if the treating physician’s conclusions have more credibility and persuasiveness than those from the AME.

  1. How do you define a strict or traditional AMA Guides determination that must be performed prior to performing an Almaraz-Guzman analysis? What do you mean by being accurate? Scientifically? According to AMA? Equitably?

A strict rating referred to in Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, is one that is solely based on the literal reading of the AMA Guides and driven by the diagnosis based, functional loss, or anatomic ratings within the Guides. So if a medical condition is not listed in the Guides, such as plantar fasciitis or fibromyalgia, the WPI rating would be 0% under a strict rating. Also, carpal tunnel syndrome would be rated strictly under the rubric of page 495 of the Guides without any leeway to expand the analysis and include functional loss.

An “accurate rating” as indicated by the District Court of Appeal in the Almaraz-Guzman case refers to the ability of a QME or AME to veer away from a strict WPI rating and apply any other WPI rating method that more accurately reflects a person’s impairment, especially in ADL and work functioning. Sometimes, the most accurate rating is the strict rating. QMEs and AMEs are considered experts in evaluating work disabilities according to Chapters 1 and 2 of the AMA Guides. So physicians can consider a wider range of impairment rating methods that may capture a person’s impairment much better than a mechanical application of the Guides. The best example of this is for carpal tunnel syndrome where the strict rating is based on one of the three methods of rating listed on page 495: post-surgical 5% UE; 0% with full recovery and no residual signs, symptoms, or complaints; or application of Tables 16-10, 16-11, and 16-15. An alternative rating method would include grip loss, loss of dexterity and others in Chapters 13 and 16 of the AMA Guides.

A QME or AME who wants to apply a “more accurate rating” would have to explain why the strict rating is not accurate and why an alternative rating is more accurate. So a good explanation that states grip loss is more accurate in a specific case is more accurate because the three methods to rate carpal tunnel syndrome does not capture all of the other things that are also wrong with the person’s hand, such as thenar or hypothenar atrophy, A-1 pulley dysfunction, or DeQuervain’s tenosynovitis.

So the term accuracy refers to the overall big picture of how an impairment is affecting a person’s ADL functioning including work activities.

  1. The parties often make convincing arguments on both sides that the Kite Analysis should either apply or not apply. The Venn diagram is often not black or white. In cases of uncertainty, is the default to use the Combined Values Chart (CVC)? Do you expect the CVC chart to be used still in most cases? More than 90% of cases to use the CVC for example? Or do you believe that adding will become standard? Which way is the wind blowing?

The Kite decision (Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), and cited in Los Angeles Metropolitan Transportation Authority v. Workers’ Comp. Appeals Bd. (La Count) (2015) 80 Cal. Comp. Cases 470 (writ denied)) indicates that the CVC may not apply if there is a “synergistic effect” of injuries to more than one part of body that increases the difficulties in performing ADLs. In Kite, the physician explained why the CVC should not apply in the case since the patient had bilateral hip replacements and normally, one hip replacement will result in a patient adapting to having an artificial joint by relying on the remaining natural joint. In this case, with both hip joints being replaced with artificial ones, the Applicant’s adjustment to them will never be the same functionally as he would have had with one natural joint, so there was a synergistic effect of ADL function having had two joint replacements.

Cases since La Count and Kite indicate it is not a question about synergy but is more a question about accuracy of the WPI ratings. The physician in Kite explained why the CVC should not apply in this case, and the conclusions constituted substantial medical evidence.

In answer to the question, the CVC chart applies as a default in accordance with the 2005 Permanent Disability Rating Schedule and the AMA Guides in Chapter 1 on pages 9-10. So, in every case, the QME, AME or PTP must first use the CVC. However, the physician must state the reasons for his or her conclusion that the CVC should not apply in a particular case. In many cases, not applying the CVC will result in a life pension permanent disability rating (70% or higher), so there is a lot at stake in many of those cases. Physicians need to explain in each case why they do not believe application of the CVC is accurate and why adding impairment ratings are. For example, physicians have been justified adding impairments for a failed back fusion adding a psychiatric permanent impairment rating from depression or chronic pain under the DSM-5 somatic related disorders.

In answer to the specific question, the CVC still applies in most cases and only the more astute QMEs and AMEs correctly apply the principles of Kite and La Count.

  1. If a second injury is a consequence of a first injury (e.g., psyche secondary to orthopedic), does that affect the argument as to whether the CVC applies or whether the disabilities should be added? If there is no overlap but also no synergy, are impairments added or combined (e.g., a thumb and sleep disorder)?

These were separate questions asked by a member of the audience from the ones above in item 8. The question is not whether there are compensable consequential injuries that justify adding instead of combining separate parts of body injured. As indicated in the previous discussion, the question is, does application of the CVC result in an inaccurate WPI rating? Does the rating using the CVC underestimate the effects of the separate impairments on the Applicant’s ADL and work functioning? If so, how, and why? The discussion is not about a separate injury as indicated in the question; it is an issue about parts of body injured as the result of the industrial injury.

The physician has to address these issues specifically and explain how and why adding the impairments is more accurate for a specific injured worker. In orthopedic, psyche, and internal cases arising out of a single injury (specific or cumulative trauma), there may be overlap between the internal (if it is hypertension) and the psyche condition but not with the orthopedic condition. Any one of these specialists could comment upon the relationship and interactions between the impairments from multiple specialties.

  1. Regarding the AMA Guides, the use of the word ratings are “generally combined” imply that the authors of the Guides intended all but clearly synergistic ratings to be combined? If impairments are added and they add up to over 100%, what happens? What do you do when the AMA impairment ratings for separate body parts/regions do not overlap but functional activities do overlap—do you add when there is no overlap, or combine when there is functional overlap?

It seems that this audience was fixated on CVC vs. adding impairments since so many questions were asked on this subject. The vast majority of cases do not involve or justify adding impairments, so the CVC is always the default. Everyone is urged to read Section 1.4 on pages 9-10 of the AMA Guides which concede that some impairments are additive and even some could be multiplicative. QMEs and AMEs are urged to jettison the term “synergistic” in favor of a more nuanced explanation of why the CVC should not apply and the ratings are more accurate to add them. Again, look at the entire person—how do multiple ratable impairments affect the person’s daily activities compared to someone who only has one of the impairments? How and why do you justify adding the impairments?

If impairments add to over 100%, remember the caution from Labor Code section 4664(c)(1): There are seven regions of the body and no one impairment can exceed 100% for each region for the lifetime of the injured worker. So you would default to 100% permanent total disability. Hint: any WPI rating or combined ratings equal to or greater than 72% WPI rate to 100% permanent disability since WPI ratings are increased by 40% when adjusted under the Permanent Disability Rating Schedule by the 1.4 adjustment factor, age, and occupation.

There is no set rule or guideline about whether or not you combine when there is overlap for functional loss and add if there is no overlap of functional loss concerning WPI ratings for different body parts or systems. Functional loss assumes the WPI rating is based on functional loss which might not be the case. Remember, WPI ratings are derived from functional loss, anatomic loss, or diagnosis based. So the QME or AME would have to discuss how and why there is overlap, if any, between disparate rating methods in a single case. Each case has to be determined by its own facts, so there is no set rule on adding or combining. The real question is whether or not the QME or AME’s explanation of adding or combining is persuasive, credible, and convincing evidence upon which to support an award of benefits.

  1. How can one objectively assess maximal exertion for motor power?

There are a number of ways to clinically evaluate whether or not a patient is exerting maximal effort. For example, an examiner could hold the patient’s forearms during dynamometer grip testing as the patient flexes the arm muscles to squeeze the handles of the dynamometer. Also during testing ankle strength for motor function, the physician can test flexion of the great toe later in the examination and compare strength since both test the same nerve distribution. Finally, the physician can request the patient to perform an activity that requires motor function while distracting the patient, e.g., dropping something to the floor and asking the patient to pick it up; asking the patient to pick up his shoes to test the ability to bend. The number of distraction tests are limited to the imagination of the examiner.

  1. Cumulative trauma (CT) injuries are still confusing. If the injured worker worked one year in a manual job but 20 years in other manual jobs and had degenerative disc disease of the spine, is it still a CT? Is only 1/20th related to recent work? You seem to say it qualified for CT, I agree, but I do not know how to proceed from that. [Another physician asked: “How long—6 months or 1 year—would be the cumulative trauma?”]

In the Coltharp case, the Court of Appeal defined the concept of “injurious exposure.” See Aetna Cas. & Surety Co. v. Workers’ Comp. Appeals Bd. (Coltharp) (1973) 35 Cal. App. 3d 329, 110 Cal. Rptr. 780, 38 Cal. Comp. Cases 720, as a series of incidents at work that eventually cause lost time or a need for medical treatment beyond first aid and a follow- up visit. See also Labor Code section 3208.1(b), which specifically says: a cumulative injury “occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412.”

Labor Code section 5412 establishes the actual “date of injury” which is an actual fixed date. That is the date where there is a concurrence of disability and knowledge, where the employee finds out their condition is caused by a work-related cumulative trauma and the employee suffers from a disability due to that. The disability can be temporary total, temporary partial, permanent partial, or permanent total. The employee’s knowledge that the condition is work related can come from a physician, an attorney, or any other person who informs the employee that the condition is work related.

Labor Code section 5500.5 establishes liability for a CT injury: the date of the concurrence of disability and knowledge or the last date of injurious exposure, which ever occurred earliest. This section also establishes the liability for cumulative trauma injuries. So, in the physician’s example above, where there is 1 year of employment in an arduous job with 20 prior years in an arduous job, the cumulative trauma period would be for the last 21 years with liability for all 21 years on the last year of injurious exposure, i.e., whoever employed the employee during the last year. Yes, the most recent employer “buys” the entire 21 years of injurious exposure. The rationale for this is economics. Liability for CT injuries is spread throughout a given industry. Think about the movie and television production field. People work for various employers over a 30-year period in usually arduous jobs, from camera operators, stunt people, production assistants, prop makers, prop movers, etc. Liability for CT injuries are spread throughout the production companies who employ these people over the years.

Here is another question on the same subject of CT injuries: what if I, as a QME, make a finding that there is a cumulative trauma injury, but the defense attorney says in his advocacy letter that there is a claim for a specific injury?

That is an excellent question. The law allows for what is called “amending the pleadings to conform to proof.” So if a physician finds that an alleged specific injury actually is the culmination of a cumulative trauma injury, the physician should say so and state how and why he or she came to that conclusion. It is never substantial medical evidence for a QME or AME to state that whether or not there is a cumulative trauma, injury is “deferred to the trier of fact.” The QME or AME is the medical expert, and the judges are relying on their evaluation of a claim to determine if the injury is from a specific injury, cumulative trauma injury, or is non-industrial.

  1. I am still receiving duplicates or triplicates of records (from the same party) and extraneous pages (subpoenas, faxes, etc.). If all those pages are included in the attorney declaration, are we supposed to spend what could be hours sorting through and eliminating extraneous pages and only count the pages of actual records? I believe I have heard we should because the medical-legal fee schedule states “relevant” documents. This could become very time intensive when there are hundreds or thousands of pages.

While this question has nothing to do with WPI ratings, it is an important issue to discuss here since the new medical-legal fee schedule went into effect for examinations or depositions of physicians that occur on or after April 1, 2021. The regulations can be found at Cal. Code of Regulations, title 8, section 9795. The general reason for the question is that the first 200 pages of records review are included in the set fees for a comprehensive medical-legal examination and a $3.00 per page charge for any records greater than 200 pages. So it could become expensive for claims administrators to pay for a medical-legal evaluator reviewing thousands of pages of duplicative records.

One suggestion if this happens is for the QME or AME to examine the patient, write an initial report and indicate in that report that a record review of relevant documents is not possible until the party that sent them eliminate duplicative documents and that a supplemental report will be issued once the non-duplicate and relevant records are correctly sent for review. See Cal. Code of Regulations, title 8, section 35(i), which says the medical-legal evaluator wait 10 days for records to be received and then write the initial report and request the records be sent and a supplemental report can be issued completing the initial medical-legal process.

It is not recommended that physicians review all records including duplicative ones and then bill a claims administrator $3.00 per page over 200 pages of review. This is because the physician may be looking at an objection to the medical-legal billing for the duplicative records review since duplicative records are not “relevant” to the examination or medical-legal conclusions, and a judge would probably disallow the cost of review of those duplicative records.

  1. For lumbar stenosis without radiculopathy, can a QME or AME use Table 15-7, Section IIc?

The answer is “yes.” This is one of the 300 inconsistencies in the AMA Guides Fifth Edition. In the text on pages 379 to 380, the authors indicate that the default WPI rating method for spinal impairments is the DRE method and that ROM (Range of Motion) is used sparingly and requires the existence of a “radiculopathy” under item 2 on page 380. However, Table 15-7 (the spinal disorders table) that is used as part of the ROM method indicates that a radiculopathy is not required for Section IIc to apply. Section II is titled “Intervertebral disk or other soft-tissue lesion” and sub-section IIc states: “un-operated on, stable, with medically documented injury, pain, and rigidity, associated with moderate to severe degenerative changes on structural tests (includes an MRI with and without contrast); includes herniated nucleus pulposes with or without radiculopathy” which for the lumbar spine is a 7% WPI. Spinal stenosis that results in an operation has WPI ratings for spinal disorders for the Range of Motion method is on Table 15-7, Section IV.

  1. For a Mumford procedure, is the rating a 10% UE (6% WPI) from Table 16-27 arthroplasties or a 15% WPI from Table 16-18 maximum value of the acromioclavicular (AC) joint? I must be a conservative evaluator because I just rated a case like this, so I missed the higher rating. Which one is more accurate?

A Mumford procedure is the same thing as a distal clavicle resection arthroplasty. During the Continuing Medical Education program, the physicians were shown two slides, one of Table 16-27 Arthroplasties of the Upper Extremity Joints, where a resection arthroplasty of the AC joint is a 10% UE or 6% WPI rating, and one of Table 16-18 that shows the maximum value of each upper extremity joint and the AC joint is 25% UE or 15% WPI. Most orthopedic surgeons will say that a full Mumford procedure involves removal of the AC joint which fills in with scar tissue and the actual joint is no longer there. Conservative medical-legal evaluators will apply the 6% WPI arthroplasty rating from Table 16-27 because it is specific to an arthroplasty which was performed in this case, and liberal evaluators will apply the 15% WPI removal of the joint from Table 16-18 for the same part of body and outcome simply because the joint is no longer there. Also, there can be a partial Mumford procedure where only part of the joint is removed and the exposed acromion or clavicle are smoothed out. So counsel should check the operative reports to see if the procedure removed the whole joint or if only one side was removed.

  1. In applying Almaraz-Guzman, does the injured worker receive one or the other WPI rating, i.e., the strict rating or the alternative rating? Or can they receive a combination of the two? Example: a DRE and adding lifting impairment under the hernia section [author’s note, Table 6-9].

This is a very confused physician, but he should be applauded for his honesty. The physician is missing the point of alternative rating methods. It is all about accuracy of a rating to fit a particular case. The first step in every case is to apply a strict rating method. Here, since the case is referring to a spinal injury, the physician is required to start at Chapter 15 of the AMA Guides and find either a DRE or ROM rating. If neither method is accurate, then the physician has to explain why. For example, the physician may say that a DRE II or ROM rating method alone is not accurate based on the effect the injury has had on the Applicant’s ADL and residual work abilities. Then the physician can jump to an alternative rating method that he or she feels is more accurate than the strict one. The physician would have to explain why the alternative rating is more accurate than the strict one. Finally, to seal the deal, the physician has to state his or her conclusions are based on reasonable medical probability.

Adding or combining a DRE rating to a hernia rating from Table 6-9 may be the most accurate rating in a case, but the physician should have a solid evidence-based reason for doing so other than the lifting restriction in Table 6-9 is elegant since us old-school lawyers and doctors remember our cases prior to 2004 that were based on work restrictions, which we are no longer allowed to use. So the best practices would have the physician use Table 6-9 alone and explain in his or her report why no other method for rating WPI in this case is as accurate.

  1. You implied that a QME with hand arthritis who does not physically examine and manipulate the Applicant for ROM or strength testing is an invalid exam. Is there a valid solution for this QME?

Labor Code section 4628(a) mandates that the evaluating physician examine the patient. It specifically states: “Except as provided in subdivision (c) [which pertains to review of records], no person, other than the physician who signs the medical-legal report, except a nurse performing those functions routinely performed by a nurse, such as taking blood pressure, shall examine the injured employee or participate in the non-clerical preparation of the report…”

Cal. Code of Regulations, title 8, section 10682 mandates the information that needs to be included in every medical-legal report, along with compliance with Section 2.6 of the AMA Guides. The bottom line is that there cannot be a surrogate evaluator who actually examines the Applicant in the presence of the appointed QME unless both parties agree to it. It is not unprecedented to have a qualified chiropractor perform the measurements and examination of an Applicant in the presence of the appointed QME medical doctor who cannot physically perform the physical examination, but that occurrence is rare and requires all parties to agree to it in advance.

Once of the most qualified physical medicine and rehabilitation physicians worked at an acute care hospital and specialized in spinal cord injury cases, both industrially and non-industrially related. He was an amazing practitioner and was very patient oriented. Why? Because he was a paraplegic and was unable to examine his own patients. But he was a brilliant diagnostician and understood the needs of his patients while they were recovering from their injuries at the hospital and how to adapt to being confined to a wheelchair for the remainder of their lives.

  1. In a deposition, a party tried to get me to give a 3% WPI rating after I stated the patient was non-ratable, and the party asked me to give a 3% WPI for pain instead. Is it true that you can add a 3% WPI rating for pain related impairment when there is no underlying ratable impairment?

The answer is “no.” The Permanent Disability Rating Schedule (PDRS) is a regulation that is mandated by Labor Code section 4660.1(d)-(f). On page 1-12 of the PDRS, the Schedule indicates up to 3% WPI can be added to an underlying WPI rating if the burden of the impairment is greater than expected by the underlying rating. So, in the example, the physician cannot assess up to 3% WPI when there is no underlying ratable impairment. The reaction to this question is that the physician probably missed an accurate underlying WPI rating because it is apparent the QME felt there should be a WPI impairment add-on due to pain.

  1. Can a doctor add 3% WPI pain impairment to an Almaraz-Guzman alternative rating?

That is an excellent question, and the answer is “yes.” We are looking for the accuracy of an underlying WPI rating. This includes the step-by-step process of the physician explaining why a strict rating is not accurate and why an alternative one is more accurate. This would be based on the underlying permanent objective medical findings and not the Applicant’s subjective complaints. So if the subjective complaints of pain are corroborated by the objective findings and the burden on the Applicant’s ADL functioning is greater than expected by the underlying rating, modified by an Almaraz-Guzman analysis, then up to 3% WPI can be added to the underlying WPI rating that was based on the Almaraz-Guzman case.

  1. In terms of a WPI rating for psyche, I missed the GAF rating vs. using the AMA Guides for WPI since the Guides have no metrics for determining psyche WPI. In a psyche case, can we use ICD-9 or ICD-10 diagnosis along with the GAF?

Actually, the Guides do have a metric, but it gets complicated. On page 395, the authors talk about the assessment of workplace functioning. They list four categories: Understanding and Memory; Sustained Concentration and Persistence to carry out simple instruction; Social Interaction; and Adaptation as to the ability to adapt to changes in the workplace. These criteria (concentration, persistence, and pace) are used in social security disability cases. The psychiatrist or psychiatrist can then refer to Table 13-8 to provide a WPI rating when adding to the foregoing discussion the factors listed in Classes 1 through 4 for personal and social functioning.

The foregoing discussion is one of a few ways to rebut a strict psychiatric rating using the GAF-WPI score that is mandated by the PDRS, discussed above. Unfortunately, there is somewhat of a conflict in the metrics for this. Labor Code section 3208.3(a) mandates the use of the “American Psychiatric Association (APA) DSM-III-Revised or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine.” The DSM-IV and DSM IV-Revised were adopted over the years since. However, in May 2013, the APA adopted the DSM-5, which was issued 13 years after the previous DSM revision. The DSM-5 has current diagnostic criteria that is markedly different from the diagnostic criteria listed in previous editions. For example, there is a pain disorder recognized in the DSM-IV but not in the DSM-5. Instead, the DSM-5 utilizes a Somatic-Related Disorders section that includes pain disorders. The DSM-5 has current diagnostic criteria for PTSD, which is markedly different from previous diagnostic criteria.

Fortunately, the Almaraz-Guzman case anticipates changes and updates to diagnostic criteria as the science of medicine advances. Physicians are allowed to utilize current diagnostic criteria under the DSM-5 and apply the analysis of a GAF score under the DSM-IV since the 5 axis of the DSM-IV are not in the DSM-5. The PDRS has a chart that converts a GAF score into a WPI score, and every psychiatrist and psychologist is required to use that rubric to determine a strict WPI rating. Offering an alternative WPI rating is gladly accepted for analysis for substantiality by the judges. See Chapter 9 of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) for a complete discussion of the differences between the DSM-IV and the DSM-5.

An ICD-9 or ICD-10 diagnostic code is irrelevant to the discussion of what WPI rating is the most accurate for a psychiatric permanent disability. Those codes are for billing purposes and not for a determination of permanent psychiatric impairment.

  1. A patient needs minimal treatment for TMJ and the treating dentist elects to treat with 24/7 mouth guards and turns the case into a major mouth reconstruction costing $20,000-$30,000 when this type of treatment is probably completely unnecessary. Is a QME allowed to comment on over treatment by the treating dentist?

While this question does not pertain to WPI ratings, it is an interesting question to a sitting judge. First of all, treatment for an industrial injury is driven by the Medical Treatment Utilization Schedule and the utilization review process which are respectively mandated by Labor Code section 4610 with IMR mandated by Labor Code section 4610.5. If TMJ treatment is self-procured in a disputed case, the QME in dentistry may comment upon the issue of excessive treatment, which may affect the lien of the self-procured dentist. One thing is true in some of these cases—it is extremely important for any dentist, self-procured treating, authorized treating, or QME in dentistry to review the Applicant’s own prior dental records. Otherwise, no conclusion about causation of dental problems will constitute substantial medical evidence.

  1. What tips can you give us that apply to the physical examination of an alleged injured worker so that our ultimate conclusions constitute substantial medical evidence?

A couple of basic initial concepts will get you through the physical examination of a patient in a medical-legal process. First, you, as the examining physician, need to be the person who conducts the range of motion measurements and muscle strength testing. Those aspects of an examination cannot be delegated to another person. Secondly, when you determine the WPI ratings, if any, in a given case, do not rely on a computer program that establishes the ratings under the AMA Guides. The AMA is in the process of establishing an electronic version of its AMA Guides publications. This is a trap for the unwary because the software will not account for Almaraz-Guzman alternative rating methods. Physicians need to use the hardcover AMA Guides Fifth Edition when evaluating for accurate WPI ratings. In addition, counsel for a party cannot cross-examine a computer program, and if you rely on one to establish a WPI rating, you may not be able to accurately explain how you arrived at a rating that was based on a computer program. Finally, physicians must always measure active range of motion and not passive range of motion testing. Active range of motion means the physician does not assist the patient in the testing (e.g., a physician cannot grab the patient’s arm and raise it 180 degrees of flexion and say there is 180 degrees of flexion). Finally, make sure you use upper extremity (UE), lower extremity (LE), and convert to WPI correctly.

  1. Are there any lower extremity ratings or nuances that are commonly missed that we need to be aware of?

Yes, Table 17-33 is a Diagnosis Based Impairment rating system and is mostly used by physicians because it is easy and does not depend on treatment outcomes, except for knee and hip replacements which have a point system (see Table 17-34 for hip replacements and Table 17-35 for knee replacements). Impairment ratings from Table 17-33 are the easiest for attorneys to rebut since the actual ratings can be very conservative and unrealistic as to a person’s true impairment. For example, a person who has an ACL tear or rupture has “ligament laxity” upon a positive anterior drawer sign. Once the ACL is repaired or replaced, Table 17-33 probably does not apply because there is no longer ligament laxity if the surgery is successful. But, empirically, we know that ACL replacements and repairs of partially torn ones do not last and will eventually become symptomatic, unless the patient is a professional athlete.

Table 17-2, the cross-usage chart, is seldom used in our cases because application of it is too strict and applications of it in a workers’ compensation case unrealistically result in ratings that do not reflect a person’s actual disabilities due to multiple lower extremity ratable impairments. Think in terms of someone with arthritis of the knee joint and an antalgic gait. Some people who have an arthritic knee do not have symptoms or limitations of activities while others are significantly restricted in ADL functioning. Table 17-2 eliminates consideration of the variability of how multiple measurable impairments affect ADL and work functioning. Some of us call the cross-usage chart the “anti-Kite” table.

Many physicians miss ratable impairment from Table 17-6, impairment due to leg muscle atrophy. They express in their medical-legal reports calf and thigh measurements in inches and not in centimeters, where Table 17-6 uses only centimeters. One centimeter of atrophy is measurable impairment on this table, which is commonly missed by physicians.

For antalgic gait, counsel and physicians should become familiar with Tables 17-5 and Table 13-15 in Chapter 13 of the AMA Guides. Table 17-5 is the gait derangement table, while Table 13-15 is a Station and Gait Disorders table. Either table can be used in lower extremity cases. If a QME uses Table 13-15, there is no requirement that the cause of the gait abnormality is due to a neurologic program as opposed to an orthopedic condition. In other words, just because a more accurate rating method may be in another chapter of the Guides, such as here in Chapter 13, The Central and Peripheral Nervous System, there might be a more accurate rating method for an orthopedic case.

Many times we see cases where an evaluating or treating physician in an MMI report indicates that a person has had a “good,” “fair,” or “poor” result of a total knee or hip replacement and leaves out the actual measurements and pain assessments required for use of Table 17-33. One case stands out where the treating physician found a 69-year-old school employee with a total knee replacement “without any significant residual disability, occasional pain in left knee, no further treatment is necessary, according to AMA Guidelines [sic] page 546 Table 17-33, the patient has 15% impairment of the whole person; apportionment is not indicated.”

This physician failed to indicate what job the injured worker had at the time of injury, what the mechanism of injury was that led to the knee replacement, and how the physician arrived at the 15% WPI for the knee replacement (which is a “good” result under Table 17-33). There was no listing of the 100-point system assessment of Table 17-35 for knee replacements that includes an evaluation of residual pain due to the knee replacement.

  1. Can WPI ratings be derived from a diagnostic study or from an operative report regardless of the outcome of the surgery itself?

Yes, in fact many WPI ratings can be obtained from just an operative report or diagnostic study where symptoms correlate with signs, symptoms and complaints. Treating physicians and medical-legal evaluators should always re-review the diagnostic studies and operative reports in order to make sure any ratable impairments are captured from those reports. Distal clavicle resection arthroplasties and thumb arthroplasties are found in Table 16-27 and you must compare Table 16-18 as discussed above to see which application results in the most accurate rating. You can combine (or add per Kite) impairments to the same part of body referenced in the operative report, such as loss of motion, sensory, and motor impairments in addition to the WPI rating for the surgery itself. Any kind of fusion of a joint or the spine should automatically be rated based on the fusion surgery itself and combined with any functional or sensory/motor deficits.

A good example of a case involving a ratable diagnostic study occurred for a school custodian who injured his knee on a cumulative trauma basis, with a gradual onset of pain, swelling, and clicking of the knee when he bends it. An MRI scan showed Grade III lateral femoral condyle chondromalagia. Upon declaring the custodian MMI, the treating physician opined that the Applicant should “sit and stand intermittently as needed.” The MRI findings coupled with the Applicant’s signs, symptoms, and complaints should have resulted in a discussion by the physician of Table 17-31—which, in this case, could rate 3%, 8%, or 10% WPI due to fairly advanced arthritis of one of the three knee compartments. In addition, due to the “clicking” of the knee joint, the physician could have justified an additional 2% WPI based on crepitus of the knee under the footnote below Table 17-31. One thing physicians forget about is that the footnote for crepitus states it applies “when there is direct trauma” to the knee, but the authors of the AMA Guides never account for a cumulative trauma constituting an “injury” under its rubric. Clearly, if there is crepitus of the knee joint, an additional 2% WPI probably applies even though the knee condition was not caused by a specific trauma but by cumulative trauma.

  1. What are the more common shoulder injuries judges see in cases with disputed WPI ratings?

We see mostly through and through tears of the rotator cuff “SITS” (Supraspinatus, Infraspinatus, Teres Minor, and Subscapularis tendons), labral tears at the gleno-humeral joint, sub-acromial impingement, and AC joint dysfunction resulting in a partial or total distal clavicle resection arthroplasty. Occasionally we will see an injury to the sternoclavicular joint (SC joint).

In fact, a 0% stipulation was rejected by a judge in a case where a 55-year-old tree surgeon fell down a hill and felt a “popping” of his SC joint with associated tingling of his neck. As a result of this injury, the employee has episodes of his SC joint subluxing (dislocating) unexpectedly when it reduces spontaneously. The objective findings per the PTP report states: “X-ray imaging shows deformity of mid-right clavicle consistent with fracture, small well-corticated bony opacity just above the right first costovertebral junction. Mild spurring of left AC joint, pain is 4/10.” On the date the PTP declared the employee MMI the doctor administered a lidocaine injection and told the employee who had returned to work to “refrain from overuse next three days including heavy lifting and any other strenuous activities, injection site will be sore for the next 1-2 weeks.”

The problem with this case is, for one thing, this employee has not reached MMI status unless the physician believes his condition is MMI with or without treatment within a year, which the physician did not say. Secondly, the physician failed to rate the condition in accordance with Tables 16-18 and 16-22 since there is permanent damage to the employee’s SC joint. In addition, there were no manual muscle testing of the shoulder by the physician under Table 16-35. It is clear from most SC joint dysfunctions, adduction and internal rotation ranges of motion would be significantly affected, and was not rated in this case. A QME properly evaluated this case and concluded the employee has an 8% WPI based on the subluxed SC joint (Tables 16-18 and 16-26), loss of strength for adduction and internal rotation (Table 16-35).

In many cases where there was a sub-acromial decompression surgery, most patients complain of weakness and loss of motion in some of the six ranges of motion. Virtually every person who has had some kind of shoulder surgery complains of loss of strength, especially while lifting objects away from the body. In one case, a 5% stipulation was rejected by a judge where permanent objective findings show that there was loss of motion in 3 out of 6 ranges of shoulder motion and Grade 4 loss of strength in 2 out of 6 planes of manual muscle testing. At the time the physician assigned 3% WPI, he indicated the employee has permanent limitations of lifting over 15 lb and has pain on a visual analog scale of 6/10. The physician failed to mention in his MMI report what job the employee was performing when she was injured and the mechanism of injury.

Treating and evaluating physicians should be reminded that when they issue an MMI report, they reiterate the actual mechanism of injury (e.g., falling down a hill, reaching for a heavy item, repetitive overuse, etc., and the job duties at the time of injury).

Another problem is that many treating and evaluating physicians will list the loss of motion measurements to the shoulder along with the manual muscle strength testing in the physical examination section of their MMI report and not bring them forward to the discussion section of their report to show the permanent impairment ratings for loss of strength and/or loss of motion. This occurred in a case that went to trial, and the judge was able to bring forward the loss of motion and loss of strength measurements in the physical examination section of the report and convert them to accurate UE and to WPI ratings.

Another tip that helps judges, claims examiners, and raters is to have physicians in their MMI reports always list the population normal ranges of motion on the same page as the actual measurements of an injured employee. Those normal ranges of motion are based on the criteria set forth in the AMA Guides Fifth Edition and listed on their respective range of motion criteria for rating permanent impairment. This is true for all measurable ranges of motion of all parts of body—from each individual finger or toe to the wrist, elbow, shoulder, spine, hip, knee, and ankle.

  1. When an employee with diagnosed carpal tunnel syndrome without surgery, returns to work without restrictions, there is no impairment, correct?

Possibly, but it depends on objective factors at the time the patient is declared MMI. For example, a 47-year-old program technician employed for 8 years developed insidious onset of left major and right mild to moderate wrist pain, numbness, and paresthesia. She declined a referral to a hand specialist and declined steroid injections to the wrists. Instead, she wears wrist cock-up braces at night. The EMG/NCV states: “Mild to moderate left and right carpal tunnel syndrome with demyelinating changes in sensory and motor nerves.” The treating physician’s MMI report included three pages of hand, wrist, and finger range of motion measurements and stated in his conclusions: “On examination, decreased light touch sensation in bilateral hands. No ratable impairment, return to full duty.”

This case reflects a common misconception some physicians have about the relationship, if any, between the evaluation for impairment ratings and releasing workers back to their usual and customary work activities with no restrictions, especially when those very work activities are precipitating a cumulative trauma injury. Many injured workers are faced with an employer who will not take back an injured worker who has permanent restrictions. This problem is exacerbated by the misconception by some physicians that if someone goes back to work without restrictions, there is no impairment rating. This conclusion is a sign that the physician is old school: from the days before 2004 when work restrictions formed the basis of a permanent disability award and were based on subjective complaints, objective medical findings and actual or prophylactic work restrictions. Under post-2004 injuries, such as in this example, the AMA Guides contemplates a person can have impairments but are not disabled from performing work activities. This case is a perfect example.

In cases involving carpal tunnel syndrome, page 495 of the AMA Guides provides the three choices a physician has to rate that condition. The first method is the default method and requires the doctor to apply Tables 16-10, 16-11, and 16-15 to evaluate the sensory/pain and motor function of the median nerve. The second method is to provide a 5% UE rating for anyone who has had carpal tunnel release surgery but who also has some residual symptoms or weakness. The third method is to assign 0% WPI for patients who have completely recovered from carpal tunnel syndrome with no signs, symptoms or complaints. In this example, this patient received a more accurate rating after being examined by a QME who opined she has a Grade 4 sensory and motor deficit bilaterally with a 5% UE or 3% WPI for each wrist.

A similar problem occurred for a 43-year-old school custodian who developed bilateral lateral epicondylitis on a cumulative trauma basis. The patient had bilateral lateral epicondylitis surgical release surgeries and PRP injections. On declaring the patient MMI, the treating physician indicated the patient was fully capable of returning to work without restrictions but that “epicondylitis tends to recur.” His grip strength was 80 lb on the right and 85 lb on the left. Remember, the benchmark for grip strength is the dominant side, which is usually 10% greater than the non-dominant side.

Also, based on population normal, a 43-year-old male who performs moderately arduous work as a custodian should have a normal grip strength of 95-100 lb on the dominant side and 85-90 lb on the non-dominant side. See AMA Guides, Tables 31-34. Here, the physician is forgetting that epicondylitis usually affects the ulnar nerve that passes through the elbow and gets entrapped due to swelling of the tendons that cause the symptoms of epicondylitis. The ulnar nerve and its distribution mostly control motor function (i.e., grip) of the fourth and fifth fingers and the thumb. A person’s grip strength is mainly a function of the pinky finger, ring finger, and thumb. So this patient probably has a 13% grip loss bilaterally which is a 6% WPI rating for each hand.

In these two examples, both physicians erroneously thought that just because each worker was able to return to his or her usual and customary job duties with no restrictions, there is no impairment. Remember, people can perform work activities without restrictions and still have a ratable impairment.

  1. How do you correctly rate a case involving a neck and shoulder from a single specific injury where I found 0% WPI to the shoulder and DRE II 5% for the cervical spine resulting in a settlement that was rejected by a judge?

This case involved a 50-year-old critical care nurse who was moving an intubated patient and heard a “pop” in her right shoulder and felt tingling down her right arm with spasms in her muscles in the right side of her neck. MRI imaging showed a 4 mm right-sided herniated disc at C4-C5 and an MRI of the right shoulder showed 4 mm partial thickness tear of infraspinatus tendon with supraspinatus tendinosis with mild AC joint arthritis. The nurse had an adverse reaction to a steroid injection to the cervical spine in the form of severe vaginal bleeding. Upon MMI examination, the physician found full range of right shoulder motion, full strength both upper extremities and “mildly positive right Spurling’s. There was tenderness to palpation right trapezius and cervical para-spinals.” The physician opined 0% WPI for the right shoulder and DRE Category II 5% WPI for the cervical spine. Why was the settlement rejected by the judge?

The positive Spurling test triggered the judge’s Order Suspending Action for a stipulated award based on the only ratable condition from this physician—the DRE II 5% WPI for the cervical spine. This case is a good example of how neck injuries can manifest themselves in the form of shoulder symptoms and how shoulder injuries can manifest themselves with neck muscle spasms. The DRE-II is inaccurate because the patient has a herniated disc at C4-5 with a positive Spurling test. A Spurling test is also known as a cervical compression test that can confirm radiculopathy from nerve root irritation from a herniated disc. The patient extends the neck by looking down and to the side where symptoms occur (on the right side in this case) while the doctor pushes down from the top of the patient’s head. This will trigger numbness, tingling, or pain radiating down the arm on the effected side of the nerve root irritation. The cervical spine impairment rating should have been a DRE Category III 10-13% WPI based on the MRI, positive Spurling test and the clinical findings. A panel QME examined the patient and opined her right shoulder had loss of strength 5% WPI under Table 16-35 for abduction, flexion, and extension due to the partially torn tendon, and a 13% WPI DRE III rating for the cervical spine with no apportionment.

  1. I have had two cases rejected by judges where I rated total and partial amputations of fingers—one case due to a circular saw where the patient lost his middle finger at the first metacarpal joint and the other case due to a noodle-making machine that caused partial amputations of the little, ring, and middle fingers. I rated for loss of sensory and motor function. Did I miss something?

Yes. This is a common mistake made by physicians who evaluate partial or total amputations of a digit or digits of the hand. Physicians need to closely follow the instructions on pages 442-443 of the AMA Guides and need to rate (1) the amputation, (2) the sensory deficits, and (3) the motor deficits for each finger. The finger ratings are combined and converted to a hand impairment (which is 90% of the upper extremity) and then converted to an upper extremity rating and then to a WPI rating. Remember: the maximum upper extremity rating is 60% WPI; an amputated hand is a 54% WPI based on the hand providing 90% of upper extremity function. Ninety percent of 60% WPI is a 54% WPI.

  1. What triggered a judge to issue an Order Suspending Action in a case involving a great toe injury that rated 0% WPI, but the Applicant is working full time in a job that requires standing and walking all day?

In this case, the injured worker is a 55-year-old glass product packer who had a 3400-pound wheel from a gantry roll over his great toe causing a dislocation of the toe. He missed about a year from work and had surgeries to the toe, including insertion of a metal pin. When he was released to return to work, he had to wear an orthotic device on his left foot and he is able to continue to work full time without restrictions. A judge was presented with Stipulations With Request for Award of 0% permanent disability with a provision of future medical treatment to replace the orthotic when it wears out.

The judge rejected the settlement for three reasons. In the MMI report of the treating physician, the doctor stated upon examination that, “the patient walks with an antalgic gait.” That alone rates a 7% WPI based on Table 17-5. The treating physician did not realize that this language in an MMI report is a ratable permanent impairment. Another triggering mechanism that led to the Order Suspending Action was the fact that the Applicant missed almost a whole year from work due to this injury and two surgeries. The third trigger for scrutiny of the 0% settlement was the fact that the Applicant had to wear an orthotic device while working a job that requires him to be on his feet during the entire work shift.

When there is a proposed settlement of 0% permanent disability in a case involving a significant loss of time from work, coupled with at least one surgery, a judge is obligated to scrutinize the basis of the settlement. Here, the treating physician on his MMI examination said the Applicant has an antalgic gait on examination. The Applicant was not represented by legal counsel and did eventually agree to be examined by a Qualified Medical Examiner in orthopedic surgery with a sub-specialty in ankle and foot disorders.

The QME came out with a report that indicated the Applicant has “an altered gait due to muscle weakness, limited range of motion to the first MPJ, no motion to the first IP joint, and nerve pain.” The objective findings included “ankyloses and arthritis 1st IPJ, hallux limitus 1st MPJ, muscle weakness, calf atrophy, and gait derangement.” The ratable impairments included loss of range of motion of the left great toe, ankyloses, and atrophy utilizing Tables 17-40, 17-30, 17-6, and 17-37, resulting in a 10% WPI overall impairment rating.

  1. Can I use Figure 15-19 on page 427 to determine the percentage loss of function of a sub-region of the spine? So if I believe the Applicant has lost 50% use of his lumbar spine function, that would be 50 percent of the maximum function value of the lumbar spine of 90% which equals a 45% WPI. Is that a viable way of providing an alternative rating method under Almaraz-Guzman?

The answer is “sometimes.” A little history is in order here. As is stated in The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis), the use of the AMA Guides is partially based on what this author has called political medicine—it is an attempt to provide “uniform, consistent, and objective” methods of establishing permanent impairment and is centered on occupational medicine as the overall construct of the various editions of the Guides. As you might expect, the content of each edition of the Guides is politically motivated so that the AMA can make lots of money on these publications. When the Fifth Edition was being written and edited, reliable sources have indicated that Figure 15-19 was requested by two states—Vermont and New Hampshire, which use percentage loss of function of a body part or body system in their respective permanent disability rating schedules. So Figure 15-19 was included in the Fifth Edition of the Guides, and many astute California physicians have utilized it as a way to rebut a strict DRE or ROM spinal rating.

The Guides actually allows for regional WPI ratings in the text. However, it is buried a long way from page 427—on page 9. The authors state on page 9: “In addition to listing whole person impairments, the musculoskeletal chapters provide regional impairment ratings (e.g. upper extremity, lower extremity); regional ratings are then converted into whole person impairment ratings. Within some musculoskeletal regions a consensus group developed weights to reflect the relative importance of certain regions. For example, different fingers or different areas of the spine are given different weights, representing their unique and relative importance to the region’s overall functioning. These weights, which have gained acceptance in clinical practice, have been retained to enable regulatory authorities to convert from a regional body to whole person impairment when needed.” Why this language was not included with Figure 15-19 and its cohorts for upper and lower extremity regions is totally speculative.

With this language from page 9 in mind, some physicians have justified their use of Figure 15-19 to establish a more accurate WPI rating method than using the DRE or ROM methods. Remember, a physician has to provide the strict rating first, then explain why the strict rating is not an accurate description of the patient’s permanent impairment and disability and then the physician may utilize any alternative rating method within the four corners of the Guides and state why that alternative method is the most accurate and that the medical conclusions are based on reasonable medical probability.

The case law where a physician relied on Figure 15-19 are divided. The differences between the cases that allowed use of Figure 15-19 and the cases that didn’t, boil down to how well the evaluating physician explained why Figure 15-19 is the most accurate method. Suffice it to say that counsel should not rely on the blind use of this method—it is really better used in failed back or neck fusion surgery cases, or in multiple-level fusions of the cervical and lumbar spine.

Cases where Figure 15-19 was allowed on appeal to the Appeals Board include: Valladares v. JAM Ind., 2011 Cal. Wrk. Comp. P.D. LEXIS 192; Laury v. R&W Concrete, 2011 Cal. Wrk. Comp. P.D. LEXIS 77. The Laury case has been cited numerous times in subsequent cases where the use of Figure 15-19 was upheld on appeal to the Appeals Board. Cases where Figure 15-19 was not allowed include Davis v. Walt Disney Company, 2014 Cal. Wrk. Comp. P.D. LEXIS 52; Graham v. Pepsi, 2011 Cal. Wrk. Comp. P.D. LEXIS 368; Leon v. RF Development & Busch Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 123; Wood v. U Haul, 2011 Cal. Wrk. Comp. P.D. LEXIS 535.

These cited cases are noteworthy panel decisions published by Lexis Nexis but are not binding authority. They are only persuasive authority. The differences between the cases where use of Figure 15-19 was allowed and the cases where its use was not allowed, boil down to how well the evaluating physician explained why the strict ratings of DRE and ROM do not accurately reflect the injured worker’s impairment and disability. For example, it would not be unusual to use Figure 15-19 if there is a failed lumbar fusion with a morphine pump or spinal stimulator. Experience has shown that those implanted devices lose their effectiveness within five years, leaving an injured worker with very few options for pain relief and improvement in spinal function.

Remember: the specific purpose of the lumbar spine is to hold up the torso and head of the person, to allow for flexion, extension, lateral bending, sitting, standing, walking, bending, twisting of the torso, and engaging in significant ADLs. The purpose of the cervical spine is to support the head and allow flexion, extension, rotation of the head, and lateral bending of the neck. Most of these motions allow ADL functioning involving our eyes, ears, nose, and mouth.

Figure 15-19 should be used sparingly and only in cases where the physician can justify that the DRE and ROM methods are not accurate and the use of Figure 15-19 is the most accurate rating method, including consideration of other alternative methods that may be in other chapters of the Guides.

  1. Did I rate a fractured rib case correctly?

The mechanism of injury is the first step to get to a final WPI rating. In this case, the injured worker is a laborer whose job required him to gather empty cardboard boxes, unfold them and place them in a compacter for recycling. On January 31, 2019, the compacter got clogged and the Applicant had to reach in from a rail to unclog the machine using a dowel. While leaning towards the machine’s opening, he heard and felt a crack in his ribs with the immediate onset of pain in his chest. The injury was reported, and he was sent for treatment. X-rays revealed a fractured right anterior 9th rib. He was treated with anti-inflammatory medications and a removable body brace. The Applicant complained during the one year of subsequent treatment that his chest pain would increase with heavy breathing.

Upon reaching MMI one year later and with working modified work (no lifting over 15 pounds), a QME opined that he still has residual difficulty from the right anterior rib fracture. At the time of his MMI examination, the Applicant was 5' 5" at 165 pounds. The QME stated: “Upon palpation of the thoracic spine, there was exquisite tenderness over the ninth and tenth rib right side. There was tenderness in the thoracic spine right-sided with mild muscle guarding and spasm. Pain was reported right-sided ninth and tenth rib. Range of motion of the thoracic spine was normal at 50 degrees forward flexion and 30 degrees each for left and right lateral rotation.” Despite the normal range of motion of the thoracic spine, the QME concluded that the Applicant has a 6% WPI based on a DRE category II 6% WPI (range is 5% to 8% WPI) from Table 15-4, with no pain add-on and no apportionment to non-industrial factors. He justified this method of rating because there was palpable muscle guarding and rigidity of the surrounding muscles along the thoracic spine, which is consistent with a Category II thoracic spine impairment.

There is a great deal of debate over whether an orthopedic surgeon or a pulmonary specialist (internal medicine PQME) is most qualified to determine an impairment rating from rib fractures. In this case, there was only one rib fracture. In cases with multiple rib fractures, a person’s breathing capacity is severely affected since the inspiration and expiration of air from the lungs requires expansion and contraction of the rib case as the lungs fill and empty of air. In this case, there was no evaluation by an internist to see if the Applicant’s breathing capacity was restricted due to the rib fracture, using Chapter 5 The Respiratory System, as an additional WPI rating method. However, the 6% WPI for the thoracic spine impairment was quite reasonable and constitutes substantial medical evidence since he explained how and why he chose Table 15-4—the Applicant’s range of motion of the thoracic spine was not restricted due to the fracture.

However, there is also a common consequence of rib fractures in a condition called costochondritis wherein there is inflammation of the cartilage between the ribs as a result of one or more ribs being fractured. This is usually a permanent consequence of a rib fracture since scar tissue forms at the site of the fracture and surrounding areas. This QME failed to discuss this issue as well as the fact that the Applicant had limited range of motion of his right shoulder as a result of the rib fracture. In his MMI report, the QME failed to list right shoulder range of motion measurements. People with healed rib fractures have difficulty with abduction and adduction of the shoulder (125/180 degrees abduction in this case from a treating physician’s prior report which is a 3% UE) on the side of the rib fracture. There usually is also an impairment for adduction, but the QME did not indicate measurements of all six planes for shoulder range of motion. He only noted the loss of abduction in a review of records of the treating physicians. The QME did not indicate any other shoulder range of motion measurements by the treating physicians.

Therefore, in any rib fracture case, an evaluating physician should check the Applicant’s breathing capacity (by ordering a pulmonary function test), determine a DRE rating of the thoracic spine, and any loss of range of motion of the shoulder on the side(s) of the rib fracture(s) to obtain the most accurate ratings for rib fractures.

  1. I am not sure when I should apply a DRE II or a DRE III WPI rating for a lumbar spine impairment as a general rule?

When a proposed settlement is presented to a judge for approval, the judge has to read the MMI reports of the treating and/or QME physicians. When a proposed settlement is presented that is based on a treating physician’s MMI report, if that report does not support the settlement, the judge may order the parties to arrange for a QME evaluation under Labor Code section 4062.1 for unrepresented injured workers and Labor Code section 4062.2 for represented ones. In this case, a 31-year-old construction worker injured his lumbar spine in January 2018, with an MMI exam by the treating physician in May of 2019. The treating physician’s MMI report indicates the mechanism of injury as follows: “The employee reported pain after work yesterday in low back which got worse this morning.”

In this case, at the MMI examination, the treating physician described the objective findings: “MRI shows at L4-L5 mild t moderate spinal canal stenosis and moderate bilateral neural foraminal stenosis. There is a 6 mm central to right paracentral disc protrusion with compression of the descending right L5 nerve and a posterior annular fissure at L4-L5…the patient has clinically significant lumbar radiculopathy to the right lower extremity. He also has a lumbar spine MRI showing a herniated disc causing compression of the right L5 nerve root. Consequently he is a DRE category II that calculates as a 7% WPI.”

So this physician failed to clearly state what exactly the mechanism of injury was—is this a specific injury or a cumulative trauma injury? A Stipulations With Request for Award based on the 7% WPI DRE II rating was rejected by a judge. The reason is that this injured worker clearly falls under a DRE category III since he has a herniated disc with continuing radiculopathy that is documented in this physician’s report. In addition, he has a torn annulus which can cause symptoms by itself. Since his straight leg raising tests were negative, a low-end DRE Category III rating of 10% WPI would have been more accurate in this case based on the MRI and the Applicant’s residual symptoms. It is important to note that the Applicant was placed on prednisone for a length of time which is a strong steroid that reduces swelling and actually was effective in reducing the radicular symptoms this employee had since the injury. The case was ordered to a panel QME under the unrepresented track, and the case was settled based on a DRE Category III 10% WPI.

© Copyright 2021 Robert G. Rassp. All rights reserved. Reprinted with permission.