On this edition attorney Robert Rassp will give us his thoughts on the recent decisions by the California Workers’ Compensation Appeals Board and Almaraz/Guzman and Ogilvie dated September 3, 2009.
Robert Rassp has practiced workers' compensation and Social Security disability law since 1981 and is the principal of his own law firm since 1983. He has conducted workers' compensation judges' training seminars on the AMA Guides at the request of the Division of Workers' Compensation. He is the author of The Lawyers Guide to the AMA Guides and California Workers’ Compensation, published by LexisNexis Matthew Bender and is a frequent speaker at State Bar seminars and other conferences. Mr. Rassp is also a regular contributor to the LexisNexis Workers' Compensation Law Center.
LexisNexis Podcast of Robert RasspPosted September 15, 2009Interview Conducted by John Pillitiere, Esq.
John: Hello, Robert.
Robert: Hello, John.
John: The board has issued its long anticipated decisions in Almaraz‑Guzman and Ogilvie on the issue of rebutting permanent disability under the 2005 permanent disability rating schedule. So, let's go right to Almaraz‑Guzman. And to make things simpler for our podcast, can we just call this case AG II?
Robert: I'm happy to, John. AG II is an interesting case. It is a split decision, a four to three decision by the appeals board en banc in which the majority opinion discusses the fact that any party can rebut a rating under the 2005 permanent disability rating schedule by attacking any of the four components of the schedule, such as the whole person impairment rating, the DFEC adjustment, the age of the injured worker or the occupation – really, three out of four. And basically it indicates that the party who is rebutting the prima facie evidence of correctness of the rating under 2005 P.D. schedule has the burden proof and most importantly that only the four corners of the AMA Guides 5th edition – any chapter, tables or methods in the Guides – can be allowed to be the basis of rebutting, and any other type of permanent disability rating schedule used in the past or any other kind of method outside of the Guides will not constitute substantial evidence.
John: Okay, so the standard for rebutting the whole person impairment component of the P.D. rating under AG I was whether the rating was inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability. Since the fairness test is no longer the basis for rebutting whole person impairment, does AG II give guidance on what grounds a party may use to rebut whole person impairment?
Robert: I think the appeals board has given us some guidance. What I think the appeals board is doing is giving us essentially existing law. But in the practical matter, the main ingredient of rebutting a P.D. rating under the Guides is going to be making the argument that the physician needs to give the parties the most accurate rating. It is not a question of fairness. It's a question of accuracy. What I mean by that, remember, the AMA Guides only provide ratings based on objective medical conditions that affect ADL functioning. What the AG II opinion seems to indicate is that the physician in coming up with a whole person impairment rating must take into account not only the effects of an industrial injury on a person's ADL functioning but also on their loss of work functioning. The emphasis by implications by the board here as it has in prior cases, is there has to be some objective medical findings.
John: So won't the fairness test still be operating in the background, Robert? I mean, let's take an example. Let's say a person is doing a lot of keyboard work and sustains carpal tunnel syndrome and the panel QME finds he or she has a whole person impairment of let's say only a few percentage points under the Guides, but the panel QME also says that the employee cannot return to his or her usual job doing heavy keyboard work. Wouldn't the employees' attorney say that this P.D. rating is not fair? It is not a fair measure of my client's true P.D. I have to rebut the P.D.
Robert: I certainly would not recommend any advocate for an injured worker to claim at this point in time that any rating is unfair. I think what the better argument would be is that the injured worker has objective medical findings that the strict rating in the Guides is not accurate. And a more accurate rating would be one that takes into account the effects of the injured worker’s injury on his or her ADL functioning and work functioning.
John: Okay. As you stated, the board held that when an injured employee’s whole person impairment is determined, it is not permissible to go outside of the four corners of the AMA Guides, but a physician may use any chapter, table or method in the Guides that most accurately reflects impairment. Is the board suggesting that it will entertain a rating by analogy to portions of the Guide that prior to AG II would not have applied to the particular injury?
Robert: I think the answer is yes. But I hesitate in having the community refer to this as rating by analogy. The term rating by analogy is nowhere in the Guides. So that is the first problem I have. But, what a lot of people forget about is the P.D. schedule itself. On page four of the permanent disability rating schedule of 2005 on the second column, second paragraph it states that a medical doctor shall use their clinical judgment to determine the most accurate rating when there are objective medical findings but the condition is not mentioned or listed in the Guides. So instead of saying it is ratable by analogy, the goal is to use the Guides more or less on a treasure hunt, for the doctor to find a rating that most adequately and accurately reflects the injured worker’s impairment.
John: Okay. Maybe you can take us on some specific treasure hunts here, so to speak. Going back to the example of the typist who can no longer return to his or her job because of wrist problems but has a low whole person impairment. Where might an AME or panel QME hunt in the Guides to adjust whole person impairment to get a more accurate rating?
Robert: I have four separate alternative methods. The first alternative method is to gleefully as an applicant's attorney say that grip loss is back. So on page 509 of the Guides, you have tables 16-31 through 16-34 and you can do a ratable grip loss measurement and impairment rating, which is consistent with someone with carpal tunnel since their most common complaint is weakness.
The second alternative is to use table 13-22, the chronic pain in one upper extremity rating which, again, refers to the use of the hand both in terms of ADLs and a doctor can pretty much interpolate into that thinking any impairments on work activities. By the way, table 13-22 is the same as table 13-16, which is the table for upper extremity impairments because of a central nervous system problem.
The third alternative is even more creative. You look at table 16-2 and you ask what percentage loss of use of the hand for ADL and work functions has the patient had? Remember, the upper extremity is worth 60% whole person. The hand is 90% of the upper extremity. An amputated hand is 54% whole person, so if somebody loses 25 percent of their hand use for ADLs and work activities, that would be equivalent to a 14% whole person impairment rating. Then, as an alternative, especially in cases where there is more than one thing wrong with a hand or the upper extremity on the same side, you would use table 16-3 in terms of the upper extremity loss of use. Again, what percentage of loss of use of the entire upper extremity is there because of the objective medical findings on that same side with respect to the arm, the hand or the elbow and the shoulder?
John: Right, well, let's try another example. Let's say a truck driver injures his or her lumbar spine, and once again the whole person impairment is determined to be quite low, say, 6% under DRE III, for example. Yet the physician says once again that the person can no longer be a truck driver. Where might an AME or panel QME go in the Guides to adjust WPI in a case like this?
Robert: I would start by saying as an applicant's attorney in cross examining the doctor who came up with that, that there is no such thing as a 6% whole person DRE III. A DRE III – actually, a 6% – is what we call the DRE gap. It means it does not exist. DRE III is between 10 and 13%. So assuming it is 10% whole person, there is a couple of very good alternative methods of rating a lumbar spinal injury such as this. The first one would be the regional spinal impairment section on page 427 of the guides where the lumbar spine is worth 90% whole person if a person loses the entire function of the lumbar spine. So, you could use the formula that is in the instructions in that section. Where you would take the whole person impairment based on either a DRE rating or a range of motion rating and divide it by a constant .35 if it's the neck, .75 if it is the back, and then you calculate from there what the whole person conversion is. The other alternative would be to look, for example, in table 6-9, the hernia table. A class two hernia is one in which there is frequent discomfort precluding heavy lifting but not hampering some activities of daily living. That is a class two hernia. And that sounds very similar to somebody who has a bad back. And that rating range for a class two is 10 to 19 percent whole person. The physician could easily take the example of the truck driver who can no longer drive a truck and has inability to lift. This is very similar to Mr. Almaraz, and your carpal tunnel example was of course the same as Miss Guzman. So, you see, there are other alternative methods of rating these cases.
John: Okay. On this next one I will stay away from citing a particular table because that got me into trouble on the last one. Let's say a carpenter tears a meniscus in his or her knee and gets a low P.D. and we are back to the same pattern that the doctor says the worker cannot be a carpenter anymore. What might an AG II rebuttal look like in this specific situation?
Robert: A few things there. The very first thing that any attorney should do – both applicant and defense – is to make sure the doctor has gone through all 13 methods of evaluating lower extremity injuries to make sure they have done a strict rating correctly, because we are seeing a lot of errors there, especially in table 17-33, the diagnosis based estimates. Barring any additional factor, you would look at muscle strength loss along with the diagnosis based estimate of meniscus tear. One alternative is to not use the cross usage chart of table 17‑2, which eliminates a lot of ratings in lower extremity cases by telling the physician that you can't combine one type of rating with another. And again, these are only because of the fact these ratings are based on ADL functions and not work functions. You factor in work functions. Perhaps the argument would be the cross usage chart does not apply nor does the combined values chart. That should not apply either in a lower extremity case because that is done later at the time of rating, not at the time of the doctor’s evaluation. A second completely independent method of evaluating a knee injury, or any lower extremity injury is utilizing table 17-3, which is just a conversion table. It is a regional impairment table that says if you have a leg amputation, it is 40% whole person. If a person has lost, let's say, 25 percent of their weight bearing functions for both ADLs and work functions on account of this carpenter's bad knee, 25 percent loss of weight bearing function on a 40% maximum whole person impairment is a 10% whole person impairment rating. I certainly would push for that method to be used if there is more than one thing wrong with an injured worker’s same side lower extremity.
John: Okay. This next question goes to the process here under Almaraz II. The board stated that the burden is on the party challenging the WPI. What would be the usual progression of a challenge to P.D. based on the Guides? What would that look like, Robert?
Robert: If an injured worker is represented we would, of course, get the MMI initial treating doctor's report and have the panel QME report or an AME report. I personally, since 2005 injuries have come forth to us, have a war chest set aside. I have money set aside to pay for depositions of doctors, I think when SB 899 first came out we paid out maybe $4,000. I think last year we paid out $20,000. So it is developing a record with depositions of doctors. Sometimes parties will agree to interrogatories, but I think that a live deposition with everyone showing up with the AMA Guides in their laps is the best way to do this and develop the record.
John: Okay. Let's now turn to Ogilvie. What did Ogilvie II hold?
Robert: Ogilvie II held basically the same thing that AG II did only instead of rebutting the WPI, the board has indicated in its six to one decisions it has completely affirmed its previous decision of Ogilvie I as essentially saying that the four components of the 2005 P.D. schedule is rebuttable, that the burden of rebutting is on the party disputing their peer rating and in this case they are talking about the pure rating of the DFEC ranking and the adjustment factor that is assigned to it by the schedule. The one of eight rankings that is in Table B of the PD schedule, and then they go on to indicate that one method of rebutting a scheduled permanent disability rating is to challenge the DFEC adjustments, and that challenge of the DFEC adjustment can only involve the empirical formula that devised from the Rand studies under section 4660(b)(2) of the Labor Code. So essentially they are telling us that one method of rebutting a scheduled P.D. is to challenge one of the component elements of the ratings such as the DFEC adjustment and that should be accomplished by some alternative adjustment factor that accurately reflects the injured worker's own diminished future earning capacity.
John: It seems that both Ogilvie opinions attempted to reduce the need for a vocational rehabilitation expert testimony. On a practical level, will rehab experts still be used in a significant way in diminished future earning capacity rebuttal cases?
Robert: That remains to be seen. I personally think that the board is telling us that individual earning to loss ratios may be obtained with or without expert testimony. The attorneys are savvy enough to have access to EDD data through the EDD web sites or if you have a union member, an injured worker, for example, lives‑‑ Ogilvie was a San Francisco bus driver, so her wages were all union established. So all the attorney has to do is get union wages of the contract that shows the post injury three years' of earnings that she would have earned if she would have continued working.
And I want to put this out there to the community that you are not done yet. You also have to have the injured worker produce evidence that they actually had a preinjury earning capacity. So I would recommend four calendar years of W-2 forms to show that the injured worker did in fact make similarly situated employee type wages prior to the date of injury. You don't need expert testimony for that. You can just have the applicant testify and introduce the evidence of the union contract and/or the EDD data. [So I would use expert witnesses in cases involving a significant loss of future earnings and with a large WPI rating in order to try to get a 100% disability award from a trial judge.]
John: The word on the street is that it seems certain that these cases will be appealed to the California appellate courts. Will these decisions be binding pending determination on appeal?
Robert: As of right now the board itself has not issued a stay on their own decisions, which, of course, does not surprise us. Unless the court of appeals in any of the three cases grants a stay as a result of granting a writ‑‑ no. I should say yes, I think these cases are binding on the WCAB panels and all of the workers' compensation judges. And that's not my opinion, that's the law under Gee and the Diggle cases. And in fact those are cited by the board in both of their decisions, Almaraz‑Guzman II and Ogilvie II. So they are making it clear to the community that we mean business and we want this to apply now.
John: Well, thank you, Mr. Rassp, for your comments on these cases and for being a part of this LexisNexis podcast.
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