In the June 3, 2010 Workers’ Compensation Appeals Board en banc decision of Blackledge vs. Bank of America (38 CWCR 117) the Board addressed the respective roles of the evaluating physician, the Workers’ Compensation Administrative Law Judge, and the Disability Evaluation Unit rater in determining whole-person impairment under the American Medical Association’s Guides. The opinion reiterates the importance of the Judge’s factual determinations in comparison to the evidence provided by the physician and the rater.
Blackledge involved a worker who suffered industrial injuries to his lower back, right wrist, hip and knee in 2005. The parties selected an Agreed Medical Evaluator who in May 2007 issued a report assigning the worker a total whole-person impairment of 10%. With regard to the low back, the physician opined the worker qualified for DRE (lumbar) Category 2, which allows a 5% to 8% whole-person impairment rating. The physician found 2% lower extremity impairment for the right hip and knee but found no impairment for the right wrist.
At trial, the Judge issued formal rating instructions using a fill-in-the-blanks template available within the Electronic Adjudication Management System. The instructions asked the rater to determine the percentage of permanent disability by “taking into account the nature of the physical injury or disfigurement, including the descriptions and measurements of physical impairments and the corresponding percentages of impairments” published in the AMA Guides. The Judge listed the worker’s injured body parts, referenced the physician’s report, and requested the rater consider a “3% add-on for pain.”
The rater subsequently issued a formal recommended rating of 0% permanent disability. During cross-examination, the rater testified he had “mechanically applied” the AMA Guides to find no ratable permanent disability. With regard to the 8% whole-person impairment found by the physician based on the worker’s back, the rater testified that the AMA Guides required disc disease and “radiculopathy spasm and loss of motion,” but these factors were not present. Similarly, the rater assigned 0% whole-person impairment for patellofemoral pain syndrome whereas the physician had found 2%. The rater testified direct trauma was required under the AMA Guides, but the physician’s report did not make such a finding.
The Judge rejected the rater’s 10% recommended rating and found that the employee’s injuries caused 10% permanent disability after using the 10% whole person impairment found by the physician.
Defendants filed a Petition for Reconsideration contending that the Judge should have accepted the rater’s expert opinion of 0% permanent disability. In remanding the case back to the trial court to further consider the issues of permanent disability, the Board made a series of holdings.
With respect to the physician, his role is simply to assess the injured employee’s whole-person impairment percentage by a report which comports with the AMA Guides and case law. The Judge frames the rating instructions that specifically and fully describe the whole-person impairments to be rated. The Judge may specify the whole-person impairment percentage to be used by the rater for each injured body part, or he may instruct the rater to utilize the whole-person impairment contained in a specified report. Additionally, the Judge may instruct the rater to offer an expert opinion on what whole-person impairment should or should not be rated. In any event, the Judge has the obligation and authority to interpret the evidence and fully instruct the rater on the factors of impairment and disability most accurately reflecting the injuries. Because the whole-person impairment ratings must be based on substantial medical evidence, the Judge must assure that any report he intends to rely upon comports with AMA Guides and case law.
The rater’s role is limited by the instructions provided by the Judge. His or her task is to issue a recommended permanent disability rating based solely on the formal rating instructions. Unless instructed to do so, the rater has no authority to assess whether the whole-person impairment ratings referred to in the instructions are consistent with the AMA Guides or based on substantial medical evidence. The rater cannot deviate from the Judge’s formal rating instructions and in no event may he or she offer an unsolicited opinion.
Even after the rater has issued his or her recommended permanent disability, the Judge is not bound by that recommendation. As the ultimate arbiter of the facts, the Judge can elect to independently rate the employee’s permanent disability so long as the rating is based on substantial medical evidence.
In this case the Board found that the Judge’s rating instructions had not fully described the whole-person impairments to be rated. While the Judge is free to use the EAMS forms, he or she is obligated to fully instruct the rater which whole-person impairments to use for each injured body part or give clear references to pages in the report. Based on the instructions given in this case, it was unclear whether the Judge had asked the rater to give a recommended rating based on whole-person impairments in the report or had directed the rater to independently offer an opinion.
Finally, the Board reiterated that potential AMA Guide rating problems may be minimized by the early use of non-formal ratings. For non-formal ratings, the rater should rate the whole-person impairment percentages specified in the physician’s report. However, the rater may use his or her expertise to highlight any defects the rater believes exists in the report and to annotate the whole-person impairments that would result with correct application of the AMA Guides. The utilization of such non-formal ratings help ensure that the reports used by the Judge to frame the rating instructions will be based on substantial evidence.
Blackledge is a reminder that the roles of the players are exactly the same as they were before the permanent disability system was changed by the AMA Guides in 2005. However, it emphasizes and reestablishes that the Judge is the ultimate fact finder. The rater is required to make his or her formal rating recommendation solely on the information provided by the Judge and he or she should not attempt to substitute their opinion for that of the physician. And while the level of expertise required to evaluate ratings presents a significant challenges for Judges, attorneys and others, it can be overcome by expert testimony on the appropriate use of the Guides during the cross-examination of the rater. This presents the interesting question on the possible use of testimony from outside experts regarding the appropriate application and use of the AMA Guides. For now, this issue remains unexplored, but Blackledge at least prompts the question.
