The following article was first published by the Workers’ Compensation Section of the State Bar of California in the Workers’ Compensation Quarterly Vol. 23, No. 3 (fall, 2012)
Panel QMEs: Time to Stop the Madness?
By: Mark Gearheart and Johnny Shiu
In 2004, as part of the Workers’ Compensation “Reform” Act, SB 899 changed the procedure by which the parties obtained expert medical evidence in Workers’ Compensation cases. In place of each party selecting their own medical expert in represented cases, a state bureaucracy assigns “Panels” of physicians from which each side strike a name leaving but one expert to evaluate the injured worker. Proponents of this change argued that it would eliminate the bias inherent in each party selecting their own qualified medical evaluator (QME) and provide a more equitable, efficient, and inexpensive way to resolve medical-legal controversies. We have now had 8 years of experience with this procedure. The experience of practitioners suggests that the hopes of its proponents notwithstanding, the Panel QME system is inefficient, causes increased delays and frictional costs, and in many cases leads to poor quality and sometimes even biased evidence. These problems are discussed in more detail below.
The purpose of this article is to highlight the problems with the current medical legal procedure, and to call for the reinstitution of the old system. What this piece is not intended to do is to indict any person, or physician. The authors cite to at least one formal study and marshal anecdotal evidence in support of their contentions. We will argue that the old system will likely increase efficiency, unclog the WCAB in adjudicating Panel issues, reintroduce the adversarial spirit of discovery to better ascertain the truth, and propagate resolution of cases.
The 2004 Changes
For injuries occurring prior to January 1, 2005, the law allowed each side in represented cases to obtain its own QME if the parties cannot agree to an Agreed Medical Evaluator (AME) (“old medical legal process”). Simi v. Sav-Max Foods, Inc., (2005)(WCAB en banc) 70 CCC 217.
For injuries occurring on or after January 1, 2005, the parties are subject to the current medical legal system. In represented cases, the parties must confer in an attempt to agree to an AME. Labor Code section 4062.2. After 16 days from the date of the written proposal (if provided by mail or other means other than personal service) identifying potential Agreed Medical Evaluators (AME), and failing an agreement, each side may then “race” to the DWC Medical Unit and request a Panel of three doctors in a particular specialty. Messele v. Pitco Foods (2011) (en banc) 76 CCC 956. The specialty of the Panel is largely governed by the “first come-first serve” method. That is, the party that reaches the Medical Unit first usually dictates the medical specialty of the Panel list. In unrepresented cases, and regardless of the date of injury, the defendant may not attempt to agree with an injured worker in using an AME.
The Panel QME Process Causes Significant Delays
When a party in a represented case requests a QME Panel, they must mail the appropriate paperwork into the Division of Workers’ Compensation office in Oakland. The request is processed and a purportedly “random” Panel of physicians from the designated specialty and is assigned and the parties are notified. Although the DWC is required in unrepresented cases to issue these Panels within 30 days, or the injured worker can simply select any QME, there is no set time limit for represented cases.
This system is fraught with delays. For example, in one case the parties waited 5 or 6 months for a Panel. The necessary striking ensued. While attempting to schedule the appointment with the remaining Panel doctor the parties learned that the doctor could not see the injured worker within the mandatory 90 day timeframe. The opposition would not waive the time limits. As a result, the parties were forced to request a new Panel. In other cases, Panels are issued where one or more of the physicians are in the same treatment group as the treating physician, or some of the physicians no longer perform evaluations. The parties are left with requesting another Panel. The net effect is that the parties may wait over a year for a viable Panel.
While some cases do not suffer from the delays, there are other cases where the delays create tremendous problems. For example, when there is a dispute concerning medical treatment and Utilization Review has non-certified the treating physician’s recommendation, the parties may request a QME Panel to help resolve the issue. However, during this process the treatment remains on hold because of the delay in obtaining a Panel. Moreover, the defendant is often forced to continue to pay temporary disability during the interim, unless the injured worker can return to work or if the statutory cap applies.
Consider also the cases where reports from multiple specialties are required. It is common for the parties to initially request a report from one specialty and inquire whether other specialist evaluations are needed to address the full “whole person” impairment. When the initial evaluator does recommend additional evaluations, the process starts over again, and new panels need to issue.
By contrast, under the old system if time was critical, a party could contact several competent medical-legal evaluators to identify one who could see the injured worker in a reasonable time and issue a report. To the extent that the Panel QME system was intended to make the medical-legal discovery process quicker it has fallen short.
Increased Frictional Costs
Proponents of the current Panel QME system also argued that it would reduce costs. Specifically, the current system would promote one single medical legal expert in lieu of two (one on each side), theoretically cutting medical-legal discovery costs in half. However, there is no a priori reason for this proposition.
First, the analysis ignores the increasing litigation costs associated with the Panel QME system. In an increasing number of cases, the parties are finding it necessary to go to the Appeals Board to resolve disputes over the Panel process. In fact, one of the authors of this article has tried at least 3 cases to submission in the last 12 months solely on the issue of who is the Panel QME. Inevitably, each side argues over who first requested the Panel, whether the Panel was timely and properly requested, whether the parties struck when they had the legal right to strike or did they strike prematurely, or whether the Panel specialty is appropriate.
Second, the Workers’ Compensation Judges are called upon to resolve disputes over the propriety of a Panel. The DWC Medical Unit should not and likely could not resolve these sorts of disputes; these issues are rightly reserved for the Workers’ Compensation Judges to adjudicate. But Board time is precious and scarce. A party who is not content with the Panel reporting may petition the Medical Unit and the WCAB for a replacement Panel based on a list of reasons under the Rules. This procedure is increasingly being exercised and litigation has multiplied. The current system has engendered more litigation over procedural issues than in the previous regime. District offices are devoting valuable time in addressing the in vogue question: “Who is the doctor?” The Board presumably can better spend its time in deciding the substantive rights in a matter rather than being entangled in ruling which party kept better count. Third, additional costs are incurred when the parties decide to ultimately abandon the Panel QME and opt for an AME. For instance, in some cases where the parties obtain a biased or insubstantial report from a Panel QME, either side may be forced to retain legal counsel to combat the report. Next, counsel then notices the deposition of the Panel QME. If at the deposition sufficient facts are brought forward that a judge would either find the physician incompetent or biased or both, it is not unusual for the parties to agree on an AME or request a new Panel. While no statistics are cited here for the latter proposition, anecdotally we know that it happens frequently. Thus, the savings from having one doctor is largely illusory. Instead, the parties are left with the added costs of a deposition, litigation costs, and an additional evaluator by way of either a new Panel or an AME.
Fourth, the one doctor system sidelines the enormous importance of what medical specialty a particular Panel is made up of. The honest practitioner readily admits that the makeup of the Panel dictates frequently how the case may evolve. Recognizing that medical experts too have their biases, it is no wonder that each side is often relegated to rattle sabers over which medical specialty should govern the medical issues. As a result, both sides incur litigation costs, monetary or otherwise, to advance its own specialty in hopes to gain some advantage over the long run. Putting aside that a particular specialty may not even be the most appropriate medically to assess an injured worker’s predicament, the litigation has in many instances become an end unto itself. And in cases where the selected medical specialty is inappropriate or unable to address all of the medical legal issues, the one doctor system has not sustained quality medical evidence; indeed, both anecdotal and empirical evidence demonstrates the decline of it.
The Declining Quality of Medical Reporting
Perhaps the most startling consequence of the current Panel system is the decline in quality medical reporting. To be sure, there are numerous highly qualified, skilled, impartial medical-legal evaluators operating in the Workers’ Compensation system. However, the current Panel QME process has fundamentally changed the nature of the QME medical-legal practice and has engendered a significant decline in the quality and objectivity of reporting. This conclusion is supported not only by anecdotal evidence but also by a study from the California Commission on Health, Safety and Workers’ Compensation.
Since the state’s method of “randomly” assigning QMEs for evaluations is based upon office locations and not the individual name of the doctor, a physician can increase his or her chance of showing up on QME Panels and thus obtaining QME reporting work by subletting multiple offices throughout the state. The more offices a physician has, the more likely that the physician’s name will appear on a QME Panel. In fact, at least one well-known, rather large orthopedic group has sublet a huge number of offices from Oregon to the Mexican border and rotates their often semi-retired orthopedic evaluators between offices listing each doctor as practicing at each office location. Groups who practice this type of gamesmanship receive a disproportionate number of QME referrals. In fact, a study by the state of California in 2010 documented that there are certain QMEs who are assigned a disproportionate share of evaluations. These “high volume” QMEs often use several tactics. They will list multiple specialties within orthopedics, by far the most dominant specialty for Panel assignments, and they list more than 10 or 20 different locations where they will performs evaluations. Over the period from 2005 to 2010, the state reports that the number of QMEs registered ranged between 3000 and 5500, but just 31 QMEs wrote 10% of all reports evaluated by the DEU. [Evaluating the QME Process: Is it Equitable and Efficient? (September 2010) Neuhauser, et. al. for California Commission on Health, Safety and Workers’ Compensation, page 21.]
In addition, the Panel QME system is contributing to the exodus of medical-legal evaluators from the system. In January 2005, there were 5500 doctors registered to do QME evaluations in California. By May 2010, the number had dropped to 3000. [Evaluating the QME Process: Is it Equitable and Efficient? (September 2010) Neuhauser, et. al. for California Commission on Health, Safety and Workers’ Compensation, page 8.] One could not infer that the decline in the number of Qualified Medical Evaluators is solely responsible for the substandard quality of some medical reports; to be sure, the advent of the AMA Guides in California Workers’ Compensation is likely partly responsible for the challenges in penning forensic medical responses. Nevertheless, the one-doctor rule enshrined in the current Panel system fails in hold the evaluators accountable. With nearly no expectation of repeat business, some Panel doctors may be less than inspired to produce a quality product. After all, unlike the old medical legal set up, the way to entice repeat business in the current regime is not necessarily through quality, rather, it is through increasing the odds in being selected in the lottery. This compounded with the exit of nearly 2,750 QMEs, it is of wonder whether the remaining QMEs may be led to believe that quantity overrides quality. This reality is not necessarily the doing of the physicians themselves. The problem is one attributed to the system.
Not only has the Panel QME process failed in its objective in randomly assigning QME work, it has also amplified biases to permeate parts of the system. The 2010 CCHSWC study documents that nearly every high volume QME shows a marked tendency towards conservative ratings. [Evaluating the QME Process: Is it Equitable and Efficient? (September 2010) Neuhauser et al for California Commission on Health, Safety and Workers’ Compensation, page 23.] Thus, one of the primary effects of the Panel system is to reward physicians who game the system by listing multiple specialties and office addresses and to concentrate evaluations among a group of physicians with a pronounced conservative bias.
On the other hand, there are no shortages of QMEs who produce liberal reports. For instance, a recent Panel report provided a 98% WPI despite the fact that the injured workers’ mechanism of injury was a 5 mph bump on the road causing a strain with no objective findings and negative diagnostic results. The Applicant’s counsel cannot recommend an AME and the defendant is left to litigate the matter to its end. Thus, the current Panel system appears to produce more controversial reports than ones that assess the contested medical legal issues equitably.
Meritocracy or Gamesmanship?
Under the old system, the individual parties had a free choice of expert. Presumably, they would select their medical experts based upon merit lest they live with the consequences of their choices. Under the current system, decision-making is centralized at the State of California DWC Medical Unit office in Oakland. The Medical Unit primarily decides what is best for the individual parties. As discussed above, the Panel system rewards “high volume” QMEs who engage in procedural games so that their names appear on the list frequently and enables lopsidedness within the system. However, Workers’ Compensation would be better served by a merit-based system wherein the parties have a free choice in selecting their experts.
Parties who are permitted to select their own medical legal experts would shorten the wait time for an evaluation. Instead of relying on the Medical Unit to provide a Panel of doctors, the parties may privately secure its own medical expert. Should time be of the essence, a party is free to contact its top doctors among several and select the one most appropriate who could evaluate the Applicant on an expedited basis.
More importantly, the old medical legal system would also foster an environment based upon merit. Instead of multiple office locations, it will be quality, and timely medical reporting that will garner the respect of the practitioners. Gamesmanship will be passé. The system arguably will correct itself and encourage top-notch medical writing and reporting. And human biases, which are always inherent in judgment calls (physicians included), would be tempered due to the counteracting physicians’ opinions. Attorneys inevitably will choose the physician who has credibility with both the opposition and the WCAB in order to either facilitate settlement or, if the case must be tried, to maximize the chances of prevailing at trial. The old medical legal system would discourage a party from choosing an incompetent physician for some phantom advantage since the opposition has the opportunity to secure a credible doctor. While outliers will persist, the old medical legal system in large part would very likely dissuade mismatches of medical experts.
Impact on Adversarial System
In addition to the various drawbacks of the current medical legal system, there is a fundamental side effect, which is an affront to the very nature of Workers’ Compensation discovery. The current system eliminated the parties’ right to secure its own medical legal expert, which is the core of any adversarial system. Of course, the underlying assumption is that an adversarial system is superior to a single doctor monopoly. And for reasons outlined earlier, the adversarial system forces each side to bring its very best and in the process the action-reaction of the dueling physicians provide the parties a way to resolve disputes.
One need not look any further than our tort cousin, whereby the plaintiff is free to obtain his own medical expert, and the defendant enjoys the same right. Other than the deposition of the interested parties, the medical legal examination in Workers’ Compensation likely stands to be the next most important piece of evidence, if not the most important, that is designed to ferret out the truth of a controversy. The medical legal expert is in the position to illuminate the medical problems, provide the “proper” diagnosis, and to measure in the most accurate manner the level of impairment that the injured worker has sustained.
However, the Panel QME is but one medical expert and her report typically subordinates all other medical legal reports, whether from the primary treating physician or a consulting physician. This power necessarily could be manifested intentionally or unintentionally in ill-suited manners. By contrast, pre April 14, 2004 when each side in a represented case was able to secure its own medical expert, it acted as a check and balance system. No one medical expert could be the arbiter of ultimate medical truth.
The best method to address disputed issues is to have each side’s experts independently review the medical records, interview and examine the injured worker, and answer the medical legal questions. The medical experts should review each other’s reports in an attempt to address any disagreements, oversight, misconceptions, and errors. This process necessarily requires each side to recognize that it must associate itself with credible medical evaluators. Litigants who deviate from this paradigm risk compromising their own credibility before the WCAB. By all counts, the old system was optimal, and congruent with the adversarial nature of American legal jurisprudence.
A Solution: Nostalgia
In this article, we have surveyed the old and current medical legal system. It must be evident by now that the two authors, while necessarily on opposite sides of the aisle, are attempting to speak in unison on this matter. We propose that lawmakers revisit the current procedure and consider reintroducing the old medical legal process into our Workers’ Compensation delivery system. Unrepresented injured workers will still have the right to a Panel of doctors. Not only will the old medical legal system expedite the discovery process, but it is also in harmony with the adversarial nature of the American legal system. While in represented cases outliers will exist, we posit that the parties will largely adapt and obtain quality medical evidence with the aim to resolve cases and controversies. Each side’s medical expert opinion will likely serve as a check and balance on contested issues. Finally, the old medical legal system will improve the quality of medical evidence, reduce overall costs, encourage settlement, and in cases where issues must be tried generate a superior record upon which the trier of fact may rely in order to adjudicate the dispute.
 Mark Gearheart is an applicant’s attorney at Gearheart & Otis, LLP. He earned his J.D. degree from the U.C. Hastings College of Law. Mark is a certified specialist in Workers’ Compensation, and serves on the Board of Directors of California Applicant’s Attorney Association.
Johnny Shiu is a defense attorney at Armstrong, Callan & Shiu, LLP. He holds a B.A. from U.C. Berkeley, Magna Cum Laude, and earned his J.D. from the UCLA School of Law.
 Barring the 104 week temporary disability cap provided under Labor Code section 4656. For injuries occurring on or after January 1, 2005, the cap is 104 weeks within two years from the date of injury while injuries occurring on of after January 1, 2008 merit 104 weeks of temporary disability within five years from the date of injury. See also Hawkins v. Amberwood Goods (2007) 72 Cal. Comp. Cases 807.
 Mark Gearheart.
 For example, see Rules 31-38. Title VIII CCR Regulations
REBUTTING THE PDRS WITH VOCATIONAL EVIDENCE:
WHERE ARE WE NOW?
By: Mark Gearheart, Esquire
March 8, 2017
As a preliminary matter, it is important to distinguish between rebutting the Permanent Disability Rating Schedule itself and proving permanent total disability “in accordance with the fact” under Labor Code Section 4662. The latter is not rebutting the schedule; it is a separate method to prove permanent total disability. This paper will focus on the use of vocational evidence to rebut the Permanent Disability Rating Schedule.
Although the Labor Code has long provided that the rating schedule is rebuttable (see Labor Code Section 4660, Section 4660.1), the Labor Code does not specify any method for that rebuttal. The courts have developed the methodology through case law.
In the case of LeBoeuf v. WCAB (1983) 48 Cal. Comp. Cases 587, the California Supreme Court held that the permanent disability rating upon which an award is based should accurately reflect both the permanent medical and vocational disabilities (48 Cal. Comp. Cases at 594).
The court further determined that where an injured worker is not able to benefit from vocational rehabilitation benefits, this factor must be taken into account in determining his/her permanent disability rating. An award which fails to reflect the preclusion from vocational retraining is not accurate. The matter was remanded for further proceedings. (Eventually the parties settled the matter.)
The important lessons from LeBoeuf are (1) that the vocational as well as medical factors must be considered in determining permanent disability, and (2) that where the injury impairs the injured worker’s ability to benefit from vocational rehabilitation, this should be taken into account in determining the permanent disability.
Some have argued that LeBoeuf only applies in permanent total disability cases, but nothing in the opinion indicates that is the case. On the contrary, in the case of Chevron USA v. WCAB (Arnold) (2000) 65 Cal. Comp. Cases 922, the applicant had demonstrated with vocational evidence that the percentage of the labor market he was precluded from due to the injury was greater than the scheduled disability rating. The Board adopted the percentage labor market preclusion as the disability rating, and the Court of Appeal denied review. So LeBoeuf has been used to rebut the schedule in less than permanent disability cases.
In the case of Ogilvie v. WCAB (2011) 197 Cal. App. 4th 1262, 76 Cal. Comp. Cases 624, the Court of Appeal reiterated the longstanding rule that in determining the degree of permanent disability, the Board must consider the opinions of vocational rehabilitation specialists concerning the employee’s ability to compete in an open labor market. The Ogilvie court identified at least three ways in which a party may to rebut the PDRS. Ogilvie, supra, 76 Cal. Comp. Cases at 632-634.
The first of these methods is where a party can show a factual error in the application of a formula or the preparation of the schedule. The Ogilvie court noted the problem of developing the DFEC adjustment factor in the 2005 PDRS based upon a RAND study of an older schedule without a crosswalk study and noted that proving an error in the application of a formula or preparation of the schedule was more than a theoretical possibility.
The second method in which the PDRS can be rebutted is when the injured worker shows that the injury “impairs his or her rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than reflected in the scheduled rating.” The court described this as the rule expressed in the LeBoeuf case. (See Ogilvie, supra, 76 Cal. Comp. Cases at 633.) It is important to note that the court in Ogilvie did not say that the employee had to be unable to participate in vocational rehabilitation, but rather that the injury impaired their amenability to benefit from vocational rehabilitation.
The third method is to demonstrate that the amalgamation of data used to arrive at the DFEC adjustment factor does not capture the severity of all of the medical complications of the employee’s work-related injury (76 Cal. Comp. Cases at 634).
In Contra Costa County v. WCAB (Dahl) 240 Cal. App. 4th 746, 80 Cal. Comp. Cases 1119, the Court of Appeal again addressed the issue of vocational rebuttal of the PDRS. The holding in Dahl was that in order to utilize the second method in Ogilvie, the employee had to demonstrate how the injury impaired their amenability to vocational rehabilitation. The court expressed confusion about whether the employee had to be unable to benefit at all from vocational rehabilitation or whether impaired amenability was adequate (notwithstanding the fact that the Ogilvie court had been quite clear that impaired amenability was the standard). In any event, the Dahl court held that absent any evidence in the record regarding applicant’s amenability or impaired amenability, and absent any finding by the trial judge on that issue, the Board could not utilize Ogilvie’s method 2. An award based upon that method was vacated, and the matter was remanded for further development of the record. Dahl is essentially a substantial evidence case.
Current Methods for Vocational Rebuttal of the PDRS
- A) LeBoeuf
LeBoeuf has never been overruled, and in fact Ogilvie affirmed and expanded upon it. It is still possible to prove that the injury caused a diminished labor market and argue that the percentage diminished labor market should become the new rating. Both LeBoeuf and Ogilvie endorse this method, and Dahl does nothing more than emphasis that a discussion of impaired amenability to vocational rehabilitation maybe a prerequisite. This method would appear to apply to any date of injury.
- B) Ogilvie
Ogilvie provided three methods as discussed above.
1) Factual Error
The factual error in preparation of the schedule method is still available although it only works in some cases. One common approach for dates of injury before 2013 is to compute the ratio of the rating over wage loss in the three year post-injury period and compare that to the table of ratios in the PDRS (Table A and Table B on page 1-7). Whenever that ratio is outside the range of ratios in the Tables, it can be argued that the FEC factor in the schedule does not capture the particular disability in the individual case because the ratio is outside of the range of ratios used for the FEC ranks, and therefore the schedule has been rebutted. This method does not provide an alternative rating but opens the door to other evidence to establish the alternative rating. There are probably other ways to argue a factual error in the schedule as well. There is no express requirement of impaired amenability with this method.
The diminished future earning capacity methodology discussed in Ogilvie is still viable especially for pre-2013 cases. This involves showing that the injury has impaired the worker’s ability to benefit from vocational rehabilitation and that the worker’s probable diminished future earning capacity is greater than the scheduled rating percent. The DFEC percentage is then adopted as the permanent disability rating. The applicability of this method to post-2012 injuries is a subject of some controversy, with defendants arguing that it cannot be used because Labor Code Section 4660.1 does not refer to “diminished future earning capacity” in describing the factors that must be considered in determining permanent disability for injuries after 2012. This defense argument may not carry much weight; however, since the courts for years have been the institution that defined permanent disability. The Labor Code does not define permanent disability. Taking out a requirement to consider DFEC is different than saying you cannot consider it, especially when 50 years of case law says permanent disability is supposed to reflect both the medical impairment and the vocational work disability.
3) Ogilvie Method 3
The Ogilvie court did not completely flesh out its proposed third rebuttal methodology. However, they describe a method where the party rebutting the schedule demonstrates that the “amalgamation of data used to arrive at a diminished future earning capacity adjustment may not capture the severity or all of the medical complications of an employee’s work related injury.” (76 Cal. Comp. Cases 634.) Note that the Ogilvie court uses diminished future earning capacity and diminished labor market interchangeably. An argument can be made in any case where there is more than one body part involved; that is, there is more than one “rating string” that the PDRS is inaccurate. The FEC factors in the PDRS were based upon a RAND study that looked at people with injuries to a single body part. Because of the complexity involved, RAND never studied people with injuries to multiple body parts. Thus, the rating schedule’s FEC factors (for pre-2013 injuries) simply do not capture the severity and complexity of cases where multiple body parts are involved in the injury. This may be adequate to rebut the schedule but does not create an alternative rating by itself.
Another problem with the schedule is that contrary to empirical evidence, the Combined Values Chart reduces the overall rating for workers whose injury encompasses multiple body parts (see subsequent discussion of the CVC).
- C) Diminished Occupational Capacity
This methodology is based upon the AMA Guides. Recall that the Guzman court said that the legislature had adopted the entire AMA Guides cover to cover including its instructions for use. The Guzman decision has been adopted by statute (see Labor Code Section 4660.1 (h)).
The AMA Guides define disability as an alteration of an individual’s capacity to meet personal, social, or occupational demands because of an impairment (AMA Guides, 5th Edition, page 3, emphasis added). The Guides point out that impairment and disability are two different things, and the impairment rating is just the first step in evaluating the disability.
If the impairment rating is only the first step, and permanent disability is an alteration of the individual’s capacity to meet occupational demands, then clearly a vocational analysis of this alteration is needed. In fact, the AMA Guides state that when evaluating work disability as opposed to simple medical impairment, it will often be necessary to use vocational evidence to fully analyze the disability. AMA Guides, 5th Edition, page 14. Therefore, it makes sense that one can do a direct AMA Guides disability (as opposed to impairment) rating by having a vocational expert analyze the medical and other evidence to determine the extent to which the injury has altered the individual’s ability to meet occupational demands.
This obviously needs to be quantified into a percentage. The vocational expert can initially analyze the “occupational base”. This would be the number of occupations the worker had access to before the injury (pre-injury occupational base). Utilizing the functional limitations flowing from the injury, the vocational expert can then determine the extent to which the occupational base has been “eroded”. For example, if the worker had access to 400 occupations before the injury, but only 200 occupations after the injury, that is a 50% erosion of the occupational base. The argument is that this would be a 50% disability. This is directly based upon the language in the AMA Guides themselves and is really not a rebuttal of the schedule, so arguably no finding about amenability is involved: This is simply producing evidence consistent with the language in the Guides that shows the level of disability.
How to Identify Cases Appropriate for Vocational Rehabilitation Rebuttal
Vocational rebuttal is not appropriate in every case. For one thing, utilizing the court’s opinion in Guzman and working with the medical experts will often produce adequate evidence to demonstrate an appropriate level of disability that reflects your client’s condition. Guzman does not require the use of a vocational expert. Some judges are more receptive to a Guzman approach.
However, there are a group of cases where there is an obvious gap between the AMA Guides impairment and the actual labor disability your client is suffering. These are typically cases where the applicant is not able to return to his or her usual and customary work, is likely experiencing a very significant wage loss, and is looking at very restricted or limited future work opportunities. In those cases, it is useful to analyze whether a vocational expert should be brought in to help prove the disability.
Tips in Pursuing Vocational Rebuttal of the PDRS
The first step is to make sure your medical evidence identifies and quantifies to the maximum extent possible all functional limitations flowing from the injury. Many physicians are quite casual in discussing this, and follow-up questions, supplemental reports, and even medical depositions are often useful. In some cases, a functional capacity evaluation may be appropriate.
It is also very important once you have nailed down the medical limitations/functional loss that you clarify the legal theory or theories you are using with your vocational expert. Do not assume that your vocational expert necessarily is familiar with the multiple different methodologies, their pros and cons, and the type of evidence needed to prove the rebuttal theory. The vocational report should dovetail with your legal theory of the case.
Finally, it is always a good idea to do a trial brief. Do not assume that the Workers’ Compensation Judge has thoroughly considered and analyzed the legal underpinnings of your preferred methodology. It is best to do a trial brief and lay out the argument in detail for the judge. This will increase the probability that you will prevail.
Dahl: A Collection of Errors
The Dahl court starts out by saying that “Ogilvie held that there are only three ways in which in which the scheduled rating for an injured employee may permissibly be rebutted. 80 Cal. Comp. Cases 1121.
The Dahl court wrote that using a LeBoeuf analysis which it conflated with Ogilvie method 2 required “an individualized approach”. 80 Cal Comp. Cases 1128.
The Dahl court expressed skepticism over the WCAB’s conclusion that an employee may invoke the second Ogilvie rebuttal method (diminished future earning capacity) in cases of less than 100% permanent disability. 8 Cal. Comp. Cases 1130. (The court goes on to note that this issue was not even before it, which means their statement is dicta.)
Ogilvie identified three methods of rebuttal but never said the parties were limited to only those three. In fact, the court indicated there were “at least” that many methods.
76 Cal. Comp. Cases 632.
Dahl implies that this individual approach applies to Ogilvie method 2 rebuttal regarding diminished future earning capacity. However, an “individualized analysis” directly contravenes the language of Labor Code Section 4660 (b) (2) which tells us that the DFEC is a numeric formula based upon empirical data that aggregates data from many employees.
Nothing in Ogilvie nor LeBoeuf provides that this rebuttal methodology is limited to permanent total disability. Expressing opinions on issues that are not before the court that have not been briefed to the court may not be wise. The court was apparently ignorant of the fact that LeBoeuf was used in less than total permanent disability cases. See Chevron USA v. WCAB (Arnold) (2000) 65 Cal. Comp. Cases 922 where the employee proved the percentage of the open labor market that he was precluded from due to the injury was greater than the percentage rating, and the labor market loss was adopted as the new rating even though it was less than 100%. To assert that only permanent total disability cases may use vocational evidence to rebut the schedule violates Labor Code Section 4660 which indicates the entire schedule is rebuttable but does not limit the methodology.
The Dahl court argues that Ms. Dahl had access to vocational rehabilitation because under Labor Code Section 4658.5 she was entitled to a “voucher”.
80 Cal. Comp. Cases 1130.
The Dahl court argued that many injured workers cannot go back to the job they held before the injury or to an equally remunerative job, and contends that Ogilvie does not appear to contemplate rebuttal of the scheduled rating in that circumstance. 80 Cal. Comp. Cases 1130, footnote 6.
Ms. Dahl had not yet received any voucher because the level of permanent disability had not been established because it was being litigated. Therefore the carrier did not issue a voucher because it did not know in what amount it should be issued.
It is difficult to reconcile this statement in footnote 6 with the actual facts of Ogilvie: In that case, both vocational experts (one for the defense and one for the applicant) concluded that applicant had 51% or 52% diminished future earning capacity which was greater than the scheduled rating. The Ogilvie court did not remand the matter because you cannot use vocational evidence to rebut the rating schedule unless the applicant is totally disabled: On the contrary, they had no problem with using vocational evidence to rebut the rating schedule in a less than total disability case. The reason the Ogilvie court remanded the case was because they could not tell from the record whether that diminished future earning capacity was all due to the work injury or whether part of it was based upon so-called “impermissible factors”. The Dahl court either did not understand the Ogilvie case facts or simply misrepresented them.
Observations on the Combined Values Chart
Collected By: Mark Gearheart
The combined values chart assumes that if you have more than one impairment, each successive impartment becomes less disabling than if you just have one impairment. The purpose is to avoid a rating that goes over 100%, however, that purpose can be achieved by simply capping the rating at 100%. Since the purpose of permanent disability rating evaluations is to obtain an accurate rating, sometimes the combined values chart assumptions may need to be reevaluated for the sake of accuracy.
The first point which needs to be made is that application of the combined values chart is not mandatory. The 2005 PDRS states at page 1-10: “Impairments and disabilities are generally combined using [the numerical formula underlying the combined values chart] . . .” Moreover, the AMA Guides 5th Edition tells us that there is no specific formula showing the best way to combine multiple impairments. In fact, the Guides note that a combination of some impairments could decrease overall functioning more than suggested by simply adding the impairment ratings. (AMA Guides 5th Edition, page 10.) Even under the AMA Guides, the appropriate and accurate way to combine impairments appears to be a case by case determination with the Guides authors expressly acknowledging that the combined values chart may not apply.
No less an authority than the Medical Editor of the AMA Guides 5th Edition had this to say concerning use of the combined values chart: “Note that the combined values chart, in using a single combination method for all impairments, does not account for combinations of multiple impairments that can have a greater than additive effect on function. In such circumstances, the combined values chart could provide a lower WPI rating than is functionally indicated. For example, loss of both legs is not equivalent functionally to loss of a leg and a non- dominant hand. The physician can explain the functional implications of multiple, combined impairments when the WPI rating does not fully portray whole person function.” (Cocchirella and Lord, Master the AMA Guides, A Medical and Legal Transition to Guides to the Evaluation of Permanent Impairment, 5th Edition, p.18 (2001).
It is not only counter intuitive to assume that if you have two disabilities or impairments, that is less disabling, it also runs counter to the empirical evidence. Numerous medical studies published in peer reviewed journals have documented that where there is both a mental and a physical impairment, the combination of the two generally caused increased disability that is greater than the simple sum of its parts rather than a lesser disability. For example, the article Impairment and Role Functioning in Mental and Chronic Medical Disorders in the United States: Results from the National Co-Morbidities Survey Replication by Druss, Wang, Petrukahova, Sampson, Wang, Kessler (MOL Psychiatry 2009 July; 14 (70): (728-37) which can be accessed through PubMed demonstrated that patients with both chronic medical and mental disorders had a significantly increased impairment associated with each type of disorder compared with people who just had one or the other. Similar results were obtained in numerous other studies.
An Oklahoma Court of Appeal described the logical fallacy behind the combined values chart in the following way:
“In this case, two separate body parts of the “whole body” were adjudicated independently – 15 percent to the shoulder and 14 percent to the cervical spine. Prior to adoption of the AMA Guides, Claimant’s two injuries would have been added together to arrive at his total disability rating. However, for reasons which we cannot logically fathom, the two injuries, when combined according the Guides, are worth less to Claimant than the same two injuries would have been if incurred in separate accidents, which we find to be an illogical result . . . We can imagine multiple injuries which, in combination, may create more disability to a claimant than the sum of the constituent disabilities. However, we cannot imagine injuries in combination with each other which decrease a claimant’s overall rating.” Norwood v. Lee Way Motor Freight, 646 P.2d 2, 5 (Okla. Ct. App. 1982).
In the recent Writ Denied case of Athens Administrators v. WCAB (Richard Kite) (2013) 78 Cal. Comp. Cases 213, the Board upheld a judge in refusing to use the CVC to rate a bilateral hip injury. Instead, the judge used simple addition. The judge and board noted that the AMA Guides 5th Edition described several different methods to combine impairments and that rigid application of the CVC is not necessarily accurate. Where adding the rating for the right hip and the left hip provided a more accurate final result as explained by the physician that was accepted as the correct way to do the rating.
A similar result was reached in the case of Los Angeles County Metropolitan Transportation Authority v. W.C.A.B. and Armand La Count (2015) 2015 Cal. Wrk. Comp. LEXIS 47 where the Board adopted and followed the orthopedic expert opinion that applicant’s orthopedic injuries should be added (not combined) to reach the most accurate rating.
It is important to ask in cases where there are multiple body parts or impairments whether it is appropriate to use the CVC or whether some other method (such as addition) should be used. This calls for expert medical analysis. The goal is to obtain an accurate rating.
 Mental-Physical Co-Morbidity and its Relationship with Disability: Results from the World Mental Health Surveys Scott, von Korff, Alonso, Ingermeyer et al, Psychological Medicine 2009 January; 39 (1): 33-34, available on PubMed: Chronic Spinal Pain and Physical/Mental Co-Morbidity in United States: Results from the National Co-Morbidity Survey Replication, Von Korf, Krane,Lane,McGlorieti et al, Pain 2005 February; 113 (3): 331-9 which can be accessed through Pub-Med; Impact of Cor-Morbidity on Headache Related Disability Neurology 2008 February 12; 70 (7): 538-47; and The Impact of Co-Morbidity of Mental and Physical Conditions on Role of Disability in the US Adult Household Population Merikangas, Ames, Sui et al, Archive of General Psychiatry 2007 October; 64 (10): 1180-8 also available through PubMed.
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