We are now approaching the fifth year of our use of the AMA Guides in our California 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 The Lawyer's Guide to the AMA Guides and California Workers' Compensation 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.

We are still seeing many medical reports from treating and evaluating physicians where the physician simply did not get it right and misused, abused or failed to use the descriptions and measurements of the AMA Guides in a post 1/1/2005 injury case. When we take physician depositions in these cases, we find out that some are relying on a computer-generated WPI rating software program and the physician has no idea how the rating was established. We find out that some physicians still have only a rudimentary understanding of how the AMA Guides apply in our cases. This is almost five years after enactment of SB 899 and some of these are AME physicians!

A reader of the 2008 edition of the “Lawyer’s Guide” saw the author in the halls of a DWC District Office one day and asked, “Why don’t you write about weird-assed medical conditions in your book and how to rate them for impairment?” What a great idea and we thank you. In fact, there are many medical conditions that we see in our cases where the AMA Guides apply but there are few cases that a physician has seen in the context of a litigated case. We have included a complete revision of Chapter 3 in the 2009 edition of the “Lawyer’s Guide” and updated the  chapter-by-chapter analysis of the AMA Guides 5th Edition.

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.

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.

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.

We have seen some WCAB panel decisions where a WCJ has quoted excerpts from previous editions of this guidebook, and the WCAB has adopted and incorporated the judge’s decision. This is very encouraging and significant for us, and we strive to continue bringing a balanced discussion of the medical-legal issues in this guidebook so that judicial decisions can be based upon substantial medical evidence and everyone knows how the medical evidentiary record needs to be developed for the judge to make a decision that brings substantial justice in every case.

To order the 2009 Edition of The Lawyer's Guide to the AMA Guides and California Workers' Compensation, call Customer Service toll free at 1-800-223-1940.  Ask for Publication #1432, ISBN 978-1-4224-2761-3.  Price $64.  (Price effective through Dec. 31, 2009)