Cory (Host): We would like to day right off the top that the views expressed in this episode aren’t necessarily the views of ratefast or its affiliate companies. Thank you, and enjoy this episode of the California Work Comp Report. Hello, hello and welcome back to the California Work Comp Report. Today is Wednesday, March 11th 2020. Today we have a very special podcast featuring a clip from an interview between RateFast founder Dr. John Alchemy and attorney Phil Walker regarding permanent disability rating.
Phil Walker: The permanent disability schedule that you use is the one for injuries after January 1, 1997. What I use in order to do the calculation with the permanent disability schedule is I go to work Comp Central and I click on calculator there, and I input what the permanent impairment is under the AMA. Guys. I input the occupation, the date of injury and the date of birth, and I press a button and it will then calculate the permanent disability for me. It’ll also calculate the dollar value of that and the number of weeks the permanent disability is played. It is very unusual these days to utilize the old rating schedule, which is for injuries before January 1, 1997. You can see how many years are involved there, and it would be highly unusual to get a claim with a date of injury before 1, 1, 97 and the date of injury determines which schedule you utilize. So I would recommend or indicate that you will be using what’s called a permanent disability rating schedule for dates of injury after 1, 1, 97. And you should be using that in 99.9% off all workers compensation cases.
John Alchemy: I got a couple of questions for follow up number one. Is there any year of the state or the DEU in actually calculating the P.D.? Or is this clearly the job of the adjuster?
Phil Walker: Well, it’s actually the job of both. The adjuster has to calculate the P.D. in order to set the reserves on the case. And one of the factors that is included in reserves is the dollar value of the permanent disability. The DEU also has a role, and their role is to determine, in their opinion, if the AMA guides rating, which is done by the doctor, is correct or not. In California, we have a case called Blackledge, and this is the case that outlines what the various responsibilities are of people in the worker’s comp equation with regard to ratings, and that includes worker’s compensation judges, DEU raters and also attorneys and or claims examiners. The worker’s comp judge has one responsibility, and it’s very simple is to, identify the factors that are necessary under the AMA Guides. In order to produce a permanent impairment rating. Let me give you an example. in lumbar spine rating under the DRE, which appears on Page 3 84 of the guides Category two, which is 5 to 8% permanent impairment, requires that the patient have one of the following: muscles spasm, muscle guarding a symmetric range of motion or non–verifiable radicular root pain. So the work. And then, if the patient has one of those more or he is entitled to permanent impairment of 5 to 8%. So the eight the Worker’s comp judge’s job is to review the medical report very simply and to see if the patient has one or more of that those four things and to confirm that if the patient does, the doctor gives him somewhere between five and 8% permanent impairment. If the patient does not have those things, then his rating would be zero. Now you’re gonna save yourself. Well, that’s not very hard. And the truth is, it’s not. It’s just looking at a checklist of symptoms and seeing if the patient has one of the required ones and then giving the corresponding rating nothing complicated about it. And as you can imagine, the judge ought to be able to do that on his own without the DEU quote “disability evaluation unit”. But because we have a DEU And because all those people have jobs and because they need to have something to do this case, Blackledge says that they act as experts to also do the exact same thing the judge does: Identify what findings are necessary from the AMA guides to give a rating, see if the patient has those and then, uh, make sure that the rating given is based on the AMA Guides. In my example, that means that if the patient has either muscle spasm, muscle guarding, asymmetric range of motion or non–verifiable ridiculous, a root pain that he would get a rating somewhere between five and 8% now. Interestingly, under Blackledge, the person from the DEU is considered an expert in ratings, and so the DEU rating is sent to the judge for him to review. And if the judge believes the DEU expert rating is correct, he then can utilize that in his decision as to what the permanent impairment ISS. Let me teach you something practical. In about 70% of all cases, the DEU does not do it job. It’s that simple. And what they do is they do not look to see if the necessary findings are met to support an impairment rating. Instead, what they do is they simply take whatever the AMA rating impairment number is. In our example, that would be 5, 6, 7 or eight and they go to their own computer. Plug that in along with the date of injury, occupation and date of birth and press a button and out pops a permanent disability percentage and then dollars that go with it. So let me give you an example of what happens if the DEU does not do this correctly, and you’re going to say, Why don’t they do it correctly? Answer. Because the DEU is almost always trying to give the applicant the maximum number of dollars. So here’s an example. The doctor says that the patient has, he’s doing a lumbar spine DRE rating, and he says the patient has muscle spasm. Now we know from looking at page 384 the ratings should be between five and 8%. But let’s say the doctor makes up the number. And he says because of this, the patient has 50% permanent impairment, and that number is in his report and it is sent to the DEU If the DEU is doing its job correctly, it should say no. This is not consistent with the guides. The patient has muscle spasm. That equals 5 to 8%. He has not given that number. We reject his permanent impairment number, and in reality, we say the correct number should be 5, 6, 7, or 8 based on the findings of muscle spasm. Now let’s I’m just gonna make up the number. Let’s say the 50% permanent impairment was work, ah, $100,000 the correct impairment 5% is worth $10,000. If the DEU does not do its job simply plugs in the 50% permanent impairment number, and that calculates out to $100,000 then the DEU is trying to give the injured worker $90,000 more than the law permits, and this is what happens in 70% of cases. And this is not simple negligence, meaning the DEU doesn’t know its job. This is quite it’s due to either intentional to give the injured worker more money than the law says, or it is absolute laziness. So the job of the claims examiner is very simple. The claims examiner looks to see if there’s muscle spasm. He looks to see if there is 5 to 8% given as the permanent impairment. And if he reaches the conclusion that there is a muscle spasm. As noted in the report, it will be in the section entitled Physical Findings and that the doctor has given between five and 8% impairment. The claims examiner usually agrees to pay that amount of money to settle the case. And if the DEU comes up with something different, the claims examiner’s job is to say no, the DEU Is wrong. I am going to present this to the worker’s comp judge and ask him to do his job. And that is, see what is required for the rating muscle spasm. See if the rating given is correct. 5–8% impairment. And get the judge to issue a finding that the impairment is somewhere between, 5 and 8%. I’m sorry to be so long winded. Explaining that, and the simplest thing to do for a claims examiner is to read the Blackledge decision, which lays out each person’s responsibility in this system. You can find it by simply googling Blackledge California worker’s compensation, and you will find the case.
John Alchemy: So, Phil, I have a follow up question. It sounds like the calculation of the PD is a very mechanical event. What other elements other than the permanent impairment rating value, might be a play to cause problems or issues between the parties?
Phil Walker: Well, you are correct. Calculating the permanent disability is completely mechanical. The way you do it is you. I, as I say, I go to work comp Central. I click on calculators and there really five pieces of information. I have to give the calculator number one the injured workers date of birth. Number two. The date of injury number three. The injured workers. Occupation number four, the permanent impairment number that the doctor has given in his report. And number five, the average weekly wage. There also is one other number. The percentage of the injury that the doctor says is apportioned to the specific injury. I should say the percentage of impairment that is apportioned to these, industrial injury. I plug all those factors in press the button and out comes the number that says, Here’s the permanent disability percentage. Here are the number of weeks here is the weekly rate at which it is paid, and here is the total. That is how the calculation works.
John Alchemy:It reminds me of a saying that says Whiskey is for Dr.inking. Water is for fighting, and to me, it sounds like the impairment rating is the water here. Is that correct?
Phil Walker: Correct.
Cory Oleson: For more about permanent disability rating, visit our blood and blogged. Don’t rate dash fast dot com and to learn more about rich Fast Worker’s compensation software suite visit rate, dash fast dot com. We’ll see you next time