California: Loss of Function Rating Prevailed Over Strict Anatomic Loss of Motion Rating

A recent case reflects how crucial it is for an evaluating or treating physician to point out all objective medical findings as a result of an industrial injury, and then there has to be a correlation between those objective medical findings and the ultimate WPI impairment rating.

In Prell v. Cedar Fair, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s finding that the applicant suffered a 2 percent permanent disability as result of industrial injury to her left shoulder while employed as performer/greeter/park character on 9/17/2013, and found permanent disability in accordance with the panel qualified medical evaluator Jasper Mann, M.D.’s finding of 15 percent whole person impairment.

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The WCAB found that Dr. Mann’s opinion was sufficient to rebut the strict AMA Guides rating under Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), aff’d sub nom. Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, where Dr. Mann thoroughly explained why the strict rating under the AMA Guides was inaccurate to describe the applicant’s actual disability, noting that the applicant was young and would probably need repeat surgeries, and that based on table 16-4 in AMA Guides, the applicant had equivalent to 25 percent total loss of function for the upper extremity.

Commentary by Robert G. Rassp, Esq.:

The important take-away of this case is that the WCAB panel preferred a loss of function rating over a strict anatomic loss of motion rating. This case reflects how crucial it is for an evaluating or treating physician to point out all objective medical findings as a result of an industrial injury. Then there has to be a correlation between those objective medical findings and the ultimate WPI impairment rating.

In this case, the physician felt that the significant damage to the Applicant’s shoulder justifies the alternative rating using the loss of function (25% loss) as a percentage of the total value of a loss of the entire arm, i.e. an amputation (60% WPI). This decision was signed by two fairly conservative WCAB commissioners. What is interesting about this case is that the loss of function method allowed here is similar to the 1997 permanent disability rating schedule that outlines work restrictions in a similar manner.  Remember the Court of Appeal in Milpitas USD v. Workers’ Comp. Appeals Bd. (Almaraz-Guzman) [(2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837] mandated that an accurate rating cannot be based on work restrictions under previous permanent disability rating schedules.  An example of that schedule is “the Applicant has lost 25% of his pre-injury capacity of lifting, gripping, grasping, gross manipulation, fine manipulation, and work above shoulder level.”

What is missing from the WCAB panel decision is what the Applicant’s muscle strength testing showed.  In most shoulder cases like this one, there is significant loss of strength in the six ranges of motion of the shoulder joint and are rated under Table 16-35.  Dr. Mann did not rate this case with the loss of motion with the loss of strength due to the instructions in the AMA Guides that caution against using both methods together.  However, the physician could have used both methods if he had stated how and why doing so would be the most accurate method.

Instead, the physician got creative, used the amputation of the arm under Table 16-4 value of 60% WPI and concluded that the Applicant lost 25% of the function of the entire upper extremity based on the horrible shoulder joint that the Applicant has to live with at such a young age. Counsel is cautioned to use this method in other cases unless you have the significant permanent damage to a shoulder like this unfortunate young woman has.

Read the Prell noteworthy panel decision.

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