Legal Question on Chapter 18 Pain (AMA Guides to the Evaluation of Permanent Impairment 5th Edition)
Pain Chapter 18 Question Sent in by a Guest:
Dear Phil Walker, Esq: My employee has bilateral knee injury from patellofemoral industrial condition-lifted a box. It results in functional limitations. No knee problems prior. On exam she has 12 degrees of ratable valgus deformity 5% WPI (each knee). The valgus deformity is entirely genetic in it's design and has now resulted in a painful patellofemoral syndrome (old term would have been "lit up"). There are no ratable knee findings other than the non industrial condition. So could chapter 18 Pain add on be considered in this situation? Can the add on be given when there is only non industrial impairment?
Sincerely, Confused in Chapter 18 Pain (AMA Guides to the Evaluation of Permanent Impairment 5th Edition).
Dear Confused in Chapter 18 Pain (AMA Guides to the Evaluation of Permanent Impairment 5th Edition),
Here is what you need to know:
1. There cannot be an add-on when the underlying rating for the industrial condition is 0% WPI.
2. The add-on for pain is given in less than 1% of all cases, nationally. That is because the AMA Guides indicate that all normal pain is included in the underlying ratings. Chapter 18 indicates that an add-on for pain is ONLY to be given when the pain is greater than expected, that the Applicant is credible, and that the pain significantly impacts the Activities of Daily Living. Because of those restrictions in the Guides, doctors nationally give the Add-on for pain in less than 1% of all cases.
3. However, we are different in California. No surprise there!
a. Interestingly, when the Applicant attorneys first learned that the Guides permit an add-on of 3% for pain, they requested that the DEU simply increase all ratings by 3%. Amazing.
b. The DEU declined.
c. While the AMA Guides, as applied by doctors nationally, make the add-on for pain very limited; California doctors and the DEU have taken a different approach. The DEU takes the position that there can be an add-on for pain of up to 3% WPI anytime that there is a minimal rating of 1% WPI or greater for the industrial condition.
d. The DEU also takes the position that there can be no add-on for pain if the underlying rating for the industrial condition is 0% WPI.
The position taken by the DEU to permit an add-on for pain anytime there is an industrial rating of 1% or greater is not consistent with the position of the AMA Guides that all normal pain is included in the underlying rating. The AMA Guides were made the law of California by our Labor Code.
The DEU's position raises the question of whether or not the DEU has the power to make law versus the Legislature. None of the members of the DEU are elected, as the Legislature is.
I am not aware of the issue's having been addressed legally, and I anticipate that that is because of the cost of a legal challenge versus the value of 3% WPI.
So, from an economic standpoint, I recommend that people accept the add-on of up to 3% WPI if there is an underlying rating of 1% WPI or greater. When people get angry over that, I remind them of how, under the Old System, pain add-ons were 20% PD, 30% PD, or higher, and a very large number of our workers' compensation cases were "subjective only, i.e., pain, with no objective findings."
Hope that will help.
Phil Neal Walker Law Corporation
"Workers' Compensation for the World"
250 King Street, Suite 414
San Francisco, California 94107