I have always regarded upper extremity cases both with an abundance of caution and a serious ongoing concern, since they so often have a way of growing into something much more significant, beyond the basic injury. Some common examples are: Reflex Sympathetic Dystrophy “RSD,” Complex Regional Pain Syndromes (“CRPS I and II”), “Double Crush syndrome,” Ulnar Nerve Entrapment, Compression/Neuropathy and Brachial Plexus. How many claims can you recall where the early diagnosis of carpal tunnel syndrome (“CTS”) resulting in surgery did not resolve the impairment issue for months, even years post release?
This is a very perilous formula in any upper extremity claim. To begin with, the upper extremities are covered within Chapter 16 of the Guides, which strongly favor impairment determination by the assessment of anatomic impairment through objective medical evidence, such as amputation, loss of motion, sensory loss or ankyloses. But, with Almaraz/Guzman II in play, a PTP, QME or AME is also permitted to engage impairment under Chapter 13, which covers central and peripheral nervous conditions. For example, on page 338 they have Table 13-16, which is the “Criteria for Rating Impairment of One Upper Extremity.” A Class 2 impairment produces a range of 10%-24% whole person; this is also tied into “basic tasks for everyday living.” A creative physician can therefore take a simple CTS diagnosis, which should rate at no more than a 3% WPI, and quickly up the ante to over 20% based upon limitations on dexterous use. Another section, 13.8 is found on page 343. This opens the door to increased impairment for the presence of chronic pain. Table 13-22 on that same page illustrates that a Class 3 impairment for the dominant extremity could produce impairment from 25%-39%, if the individual can use the extremity but has difficulty with self-care activities. How hard is this to craft from a history that the applicant cannot put on his shirt or her blouse, without help? The list goes on, and the exposure can be substantial.
Given the latitude afforded by Almaraz/Guzman II, I am seeing many physicians routinely ignoring the traditional impairment methods in the Guides, and instead opting for “greener pastures” in these Chapters, whether used individually or combined.
How often do you review a medical report where the physician already has a “built-in heading for Almaraz/Guzman II,” casting the impression that the norm is to find impairment well beyond the traditional use of the Guides? And, how often does the physician bother to actually craft a substantive and meaningful discussion as to why the Guides based impairment is less accurate than the determination made using Almaraz/Guzman II?
If there are two things which are given cautionary application within the Guides, they are the presence of pain and the loss of muscle strength or grip loss. In Chapter 16, at page 508, they pronounce as “principle” that loss of strength should be used as an impairing factor only in limited circumstances, such as a torn muscle leaving a defect. And, they state: “If the examiner judges that loss of strength should be rated separately in an extremity that presents other impairments, the impairment due to loss of strength could be combined with the other impairments, only if based on unrelated etiological or pathomechanical basis. Otherwise, impairment ratings based on objective anatomic findings take precedence. Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities, or absence of parts (e.g., thumb amputation) that prevent effective application of maximal force in the region being evaluated.” I am seeing many QME’s, even a few AME’s ignore this principle and simply assess impairment based only upon a declared loss of grip strength. How is this justified when the same report declares the applicant has 5/5 resistance capacity in the upper extremity? Why only grip loss? And, please note that on page 509, the Guides state that if the individual is exerting “less than maximal effort,” the grip strength measurements are deemed invalid for assessing impairment. But, how often do you actually see any physician describing any notable methods by which to assess whether the applicant is exerting maximal effort? The Guides suggest a couple of methods to address less-than-maximal effort, including rapid exchange grip and plotting grip loss based upon each of the five handle settings of the Jamar dynamometer. The idea is that a “bell curve” represents a valid effort, while a flat line might not. But, what happens when the applicant is also having grip loss in the uninjured hand and for no reason? Is this addressed?
Beyond measuring grip loss, I see a number of physicians using Table 16-35 at page 510 of the Guides in order to find impairment when, for example, there are completely normal shoulder ranges of motion; but by estimating “strength deficit” expressed in percentage, the evaluator can make impairment even when there is no existing, objective basis upon which to do so.
The bottom line right now is that there really are no “chapter” and “table” boundaries within the Guides, if the reporting physician is otherwise bent on going beyond the traditional principles of impairment application and into the realm of the unbound Almaraz/Guzman II. But, we have some thoughts to share here.
The following should pertain only to litigated cases. For non-litigated cases, there has to be another approach, which will often involve getting a rating from a private rater and then having a serious “heart-to-heart” with the Information and Assistance Officer. But for litigated cases, while there is no immediate, ready “fix” for the doctor who finds shockingly high levels of impairment based upon three simple readings of the Jamar or who declares that there is loss of muscle strength with the shoulder, or any part of either or both upper extremities, here are some practical, practice recommendations:
- LOSS OF MUSCLE STRENTH “LMS”: Regard this with great suspicion; go right to page 508 of the Guides. Are the protocols being followed? Are there “painful” conditions or is there any loss of motion, which precludes the use of muscle strength with which to assess impairment?
- “LMS” – CHALLENGE THE DOCTOR: If there is no basis for impairment due to loss of muscle strength, then the doctor must be challenged. If the physician is the PTP, send a letter under 8 CCR 9785(f)(7), together with a copy of page 508 of the Guides, asking for an explanation and discussion. If the physician is an AME or QME, then you need to follow the AD rules in communicating, but you need to follow up. If they do not respond, then you need to take some action: either a DOR and/or a petition to strike their reports.
- “LMS” – LODGING A FORMAL OBJECTION AND A PETITION TO STRIKE REPORT WITH NOTICE OF INTENT TO CROSS EXAMINE BY DEPOSITION. Here, the reporting physician either failed to respond or responded with something which did not cure the defect, and therefore, the defense position is that the reports are simply not substantial evidence of impairment.
- GRIP LOSS “GL”: Immediately look at the Jamar measurements for the uninjured hand. Are they suspiciously low as well? And, did the doctor bother to indicate whether he or she conducted any testing for maximal effort, such as rapid grip or the plotting on a curve?
- “GL” – REQUESTING PTP, QME or AME to explain how the grip loss was determined and to explain why no testing was done to determine maximal effort. Some physicians may agree to re-test.
- “GL” – LODGING AN OBJECTION TO PHYSICIAN FINDINGS AND NOTICE OF INTENT TO DEPOSE
- “GL” – DEPOSING PHYSICAN. Here, bring copies of pages 508 and 509 of the Guides, and attach each as defense exhibits to the deposition.
- “LMS” and “GL” – PREPARE AMA GUIDES RATING WITH TRADITIONAL METHODS. You may want to back this up with a private rating from someone who has a good reputation.
- “LMS” and “GL” – BE AGGRESSIVE WITH APPILCANT’S ATTORNEYS, FRAMING SETTLEMENT AROUND EXPECTATIONS IN ALIGNMENT WITH THE TRADITIONAL AMA METHODS FOR IMPAIRMENT AND NOT WITH Almaraz/Guzman II.
- “LMS” and “GL” – REMEMBER: Almaraz/Guzman II is easily “dispatched” by some physicians, without much substantive discussion. But, in Almaraz/Guzman II, the Court specifically held that the physician must explain why the departure from the Guides is necessary, how it was arrived at, and that it is more accurate than the traditional impairment method(s). It is here where many physician discussions are weak and seemingly often “canned.”
- DO NOT BE AFRAID TO TAKE A GOOD CASE TO THE WCAB