Every year since California adopted use of the AMA Guides for determining permanent disability, we have received some ratings guidance from the DWC Annual Educational Conference.
The DWC Educational Conference presents DWC statements of guidance for rating permanent disability. These sessions identify issues and should help us establish a more consistent interpretation of them.
For 2020, although the Oakland session went forward, the Los Angeles session of the conference was canceled.
Let’s review some of the DWC/DEU rating guidance from prior years’ educational conferences.
To begin, the DWC stated at its 2009 conference that the “general principle of the guides is to have an objective basis for rating impairment.”
The DWC reviewed rating for headaches in 2009 and 2014. In summary, the DWC stated that the guides:
The DWC also noted that when considering headache impairments, the term “objective basis" is limited to confirmation of "head trauma.” The effects of a central nervous injury are rated by different methodologies from Chapter 13.
We at Bradford & Barthel note that without objective confirmation of cranial nerve V injury, headaches are not properly rated as the trigeminal nerve, from Table 13-11.
Pain is considered a frequent and ongoing issue in ratings, which is evident in the fact that it was discussed at multiple DWC conferences including 2008, 2009, 2013, 2016 and 2019.
In summary, the DWC stated:
The Disability Evaluation Unit will assign pain to a body part if the physician does not designate the body part that the pain-add on is assigned to.
In 2013, the DWC/DEU addressed a rating issue related to LC 4660.1 for dates of injury Jan. 1, 2013, and later, which no longer rate add-ons for sleep, sex or psych. This prompted the question, “Is a pain add-on for pain with sleeping or sex ratable?”
The DEU’s position was that one should rate the pain unless the pain add-on is specific only for activities of sleep or sex.
Lastly, we at Bradford & Barthel note that the 3% maximum for an injury would apply regardless of the number of medical evaluators involved.
Pain and DRE ratings
The DWC reviewed pain and diagnosis-related estimates ratings at its conferences in 2009 and 2013.
In summary, the DWC said:
We at B&B note that although not explicitly stated, the DWC/DEU indicates DRE range increases are assessed in the same manner as other pain increases: “must increase burden in excess of pain component already incorporated” into WPI values.
The maximum pain increase is 3% WPI for any one injury, prompting the question of whether that should include DRE range increases.
Effects of treatment
The DWC discussed this at the 2008 and 2019 educational conferences.
In summary, the DWC said:
Let’s take a closer look at Chapter 2, page 20 of the AMA guides, which says:
Adjustments for Effects of Treatment or Lack of Treatment.
In certain instances, the treatment of an illness may result in apparently total remission of the person’s signs and symptoms. Examples include the treatment of hypothyroidism with levothyroxine and the treatment of type 1 diabetes mellitus with insulin. Yet it is debatable whether, with treatment, the patient has actually regained the previous status of normal good health. In the instances, the physician may choose to increase the impairment estimated by a small percentage (e.g., 1% to 3%).
In some instances, as with organ transplant recipients who are treated with immunity-suppressing pharmaceuticals, or persons treated with anticoagulants, the pharmaceuticals themselves may lead to impairments.
We at Bradford & Barthel note that pursuant to page 20 of the AMA guides, the application of this adjustment would be rare for work-related injuries.
LC 4660.1 and date of injury on or after Jan. 1, 2013 — add-ons
The DWC discussed this particular issue in 2013 and 2018.
In short, the DWC said that there should not be any increases for sleep dysfunction, sexual dysfunction or psychiatric disorder arising out of a compensable physical injury. They did note two exceptions for psychiatric impairment, which are:
In summary, it’s important to note that:
Tim Mussack is a senior AMA analysis and rating specialist in Bradford & Barthel's Sacramento office. This entry from Bradford & Barthel's blog appears with permission.
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