Workers' Compensation

Getting a Grip on the AMA Guides subscribers can link to the cases cited below.

Subsequent to the passage of SB 899 in California, permanent disability is determined by using the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides). The AMA Guides are very specific as to the methodology the physician is supposed to follow in determining the appropriate Whole Person Impairment (WPI) for a given case.

However, despite the specificity provided for by the AMA Guides, there are a number of uncertainties inherent to the AMA Guides that require clarification. One area of uncertainty, and an area that has been increasingly subject to litigation, is where can an evaluating physician include the loss of grip strength in determining the appropriate WPI? Recently, two panels of commissioners with the California Workers’ Compensation Appeals Board (WCAB) addressed different aspects of this grip strength loss issue.

In Tran v. Cong Tran, 2012 Cal. Wrk. Comp. P.D. LEXIS 444, applicant, while unrepresented, received a stipulated award for a wrist fracture that did not factor in grip strength loss. The applicant subsequently became represented. Her attorney filed a petition to re-open, arguing that the initial stipulated award should have included the grip loss.

The workers’ compensation administrative law judge (WCJ) concluded that since the grip strength loss was ratable, using a strict application of the AMA Guides, the failure to include the grip strength loss at the time of the original stipulations does not constitute “good cause” for purposes of re-opening the case.

In reversing the WCJ’s denial of applicant’s petition to re-open, a panel of commissioners with the WCAB found that at the time of the prior stipulated award, it was believed that permanent disability ratings under the AMA Guides precluded a rating that did not strictly follow the express provisions of the AMA Guides. The commissioners further observed that following Almaraz/Guzman, an evaluating physician can go outside chapters specific to the body part, i.e. "the four corners," of the AMA Guides in determining impairment. Thus, even though the Panel Qualified Medical Evaluator (PQME) testified at his deposition in Tran that he was unfamiliar with the Almaraz/Guzman cases, had he applied Almaraz/Guzman so as to include the grip strength loss at the time of his original evaluation, the panel reasoned, it likely would have been followed. As such, without even paying lip service to the WCJ’s observation that a strict application of the AMA Guides did not preclude the consideration of grip loss for this particular type of injury, the commissioners found that the Almaraz/Guzman cases constituted “good cause” to re-open applicant’s prior award and awarded applicant the higher level of permanent disability.

Contrary to Tran, in Wright v. City of Los Angeles Department of Water and Power, 2012 Cal. Wrk. Comp. P.D. LEXIS 448, the commissioners adopted the decision of the WCJ, who found that “the AME's conclusions in these cases are not based on a rebuttal rating to a strict rating as allowed under City of Milpitas v. WCAB (Guzman) (2009) 74 Cal. Comp. Cases 1084”. The WCJ specifically found that the AME's use of loss of motion and loss of strength was a “strict” rating and that an evaluator can use loss of motion and loss of strength at the same time in an appropriate case (citing AMA Guides, Section 16.8a, page 508).

While Tran involved a fractured wrist and Wright involved a fractured shoulder, wrist and carpal tunnel, the question that needs clarification is: When is the inclusion of grip loss a matter of strictly applying the AMA Guides and when is it an Almaraz/Guzman question?

As referenced in Wright, the AMA Guides, page 508, Section 16.8 states that “In a rare case, if the examiner believes the individual’s loss of strength represents an impairing factor that has not been considered adequately by other methods in the Guides, the loss of strength may be rated separately”. This paragraph of the Guides concludes by stating that the loss of strength cannot be considered where decreased motion, painful conditions, deformities or loss of parts prevents maximal force during strength testing.

Accordingly, in any case involving a serious injury, or an injury that might be considered “rare” where the grip strength loss is not fully contemplated by any of the other impairments being considered, grip strength loss should be a factor of impairment considered. This, contrary to the assumptions made by the panel in Tran, is in accord with a “strict” application of the AMA Guides.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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