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THE LAWYER'S GUIDE TO THE AMA GUIDES AND CALIFORNIA WORKERS' COMPENSATION, by Robert G. Rassp, Esq.

One-Stop Reference Tool

• Discussion of AMA Guides in California workers’ compensation cases, permanent disability, and apportionment of permanent disability
• Analysis of AMA Guides, chapter-by-chapter, with practice tips and expert commentary
• Checklists for compliance of medical reports in orthopedic injury cases
• Real life examples with step-by-step impairment rating calculations

Unusual Medical Conditions

• New discussion on how to rate asthma, diabetes, eye injuries, hearing loss, hernias, knee and hip replacements, shoulder injuries and Diagnosis Based Estimates under Table 17-33 lower extremity injuries

Extrinsic Evidence

• Updated discussion on how to use both the 2005 PDRS and proposed 2009 PDRS

Formal Rating Instructions

• Revised discussion reflects current approaches being used by some judges

Genetics and Risk Factors

• New discussion of genetics and risk factors, including “GINA” and California genetic information privacy laws

IMPORTANT NOTE: As of the publication deadline for the 2009 Edition of the  guidebook, the 2009 PDRS has not been officially approved by the State of California Office of Administrative Law. Please consult with the DWC website for confirmation of adoption of the 2009 PDRS at www.dir.ca.gov/dwc. It is likely that the 2009 PDRS, if fully adopted as proposed, will not go into effect until 7/1/2009 and will apply only to injuries occurring on and after that date.

We are now approaching the fifth year of our use of the AMA Guides in our workers’ compensation cases and the learning curve is still quite evident from the reading of medical reports and the deposition  testimony of physicians. As we said in the first edition of this guidebook in 2006, the guidebook is a living document and will need to be updated every year due to changes in the law, regulations and judicial interpretations of the use of the AMA Guides in our cases. The “intoxicating pleasure of authorship” as Oliver Wendell Holmes said applies especially when the subject matter is always in a state of change.

We have seen a significant increase in the use of this guidebook upon receipt of a medical report that involves the AMA Guides. Did the physician correctly apply the descriptions and measurements of the Guides or did he or she make it up as he or she wrote the report? How does the report rate under the 2005 PDRS? How can the physician be deposed if the report is not AMA compliant? What questions need to be asked? Did the physician correctly apply the pain add-on? Can there be a sleep disorder impairment in this case when the sleep disorder is caused by pain? All of these questions can be answered by reference to this guidebook and nowhere else.

We now have the proposed 2009 PDRS, which will most likely apply to injuries occurring on or after 7/1/09 and increases the FEC adjustments and re-stacks the FEC adjustment for some injured parts of body. Thus, we start 2009 with possibly three permanent disability rating schedules – 1997, 2005 and proposed 2009 – which will continue to challenge us in our cases. In addition, we are seeing cases go to trial where the parties have an agreed medical examiner but there are different interpretations of how the AME’s report rates under the AMA Guides or the 2005 PDRS. We hope to see judicial decisions on how these cases rate under the AMA Guides and we know that  physicians who evaluate these cases are also waiting for judicial clarification of how to rate cases where the tables, figures and text of the AMA Guides are subject to different interpretations. Included in the revision of Chapter 3 are more detailed discussions of unusual medical conditions and how to rate them under the AMA Guides where we have seen at least three previous AME reports where each physician did not apply the AMA Guides correctly for those unusual medical conditions. We have expanded our discussion of how to rate impairments for asthma, diabetes, eye injuries, hearing loss, hernias, knee and hip replacements, shoulder injuries and Diagnosis Based Estimates under Table 17-33 lower extremity injuries.

We have also updated Chapters 1  and 2 of the guidebook to include discussion of how to use both the 2005 PDRS and the proposed 2009 PDRS. The section in Chapter 2 of how to give formal rating instructions has been revised to reflect some current approaches some judges are using that was not included in the original version. We have added a detailed section in Chapter 5 that discusses genetics and risk factors, including a description of the new federal “GINA” and California genetic information privacy laws.