Answers to workers' compensation practitioners' questions about applying the permanent disability rating schedule (PDRS)
The Disability Evaluation Unit of the Division of Workers' Compensation (DWC) has received many questions regarding which permanent disability rating schedule applies to certain cases and how to apply the schedule correctly.
DWC has prepared the following questions and answers to assist workers' compensation practitioners. These FAQs are not exhaustive and the answers are subject to change if the Workers' Compensation Appeals Board and/or the courts issue a decision interpreting the provisions of Labor Code section 4660(d). Many other scenarios will also need to be decided on a case-by-case basis by the Workers' Compensation Appeals Board and/or courts.
Q: What types of ratings does the Disability Evaluation Unit perform?
A: The Disability Evaluation Unit issues three types of ratings
- Summary ratings – these ratings are done for unrepresented workers where no application of adjudication is filed. Summary ratings may be issued on QME panel reports or treating physician reports.
- Consultative ratings- these ratings are performed for represented works or workers who have filed pro per applications. Consultative ratings may be issued on AME reports, QME reports and treating physician reports.
- Formal ratings- These ratings are based upon instructions from a Workers’ Compensation Judge after a hearing is conducted. These ratings constitute formal evidence and the rater is acting as an expert witness when issuing a Formal rating.
Q: How do I select the appropriate Permanent Disability Rating Schedule (PDRS)? What criteria are used?
For Dates of Injury (DOI) prior to 1/1/05
Labor Code section 4660(d) states:
The schedule shall promote consistency, uniformity, and objectivity. The schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule, amendment or revision, as the fact may be. For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by section 4061 to the injured worker.
The disability evaluator must be provided with as much information as possible to determine the appropriate schedule to use. Three criteria are important to make this determination:
- The date a comprehensive medical-legal report issued indicating the existence of permanent disability
The date a treating physician report issued indicating the existence of permanent disability
- Whether the employer was required to provide a notice under Labor Code section 4061 to the injured worker
- The following examples illustrate cases that would fall under the 1997 PDRS because a report issued prior to Jan. 1, 2005 that indicates the existence of permanent disability:
- Comprehensive medical-legal report issued on or before Dec. 31, 2004 declaring the employee's condition permanent and stationary and indicating the existence of permanent disability
- Treating physician report issued on or before Dec. 31, 2004 declaring the employee's condition permanent and stationary and indicating the existence of permanent disability. A panel qualified medical examiner (QME) examines the employee in 2005 and issues a comprehensive medical-legal report finding permanent disability. The old schedule applies regardless of the 2005 date of the comprehensive medical-legal report because there is a treating physician report issued on or before Dec. 31, 2004 declaring the employee's condition permanent and stationary and indicating the existence of permanent disability
- Disability to multiple parts of the body (for example, injury to wrist and neck) where there is a report on or before Dec. 31, 2004 (either a primary treating physician report or a comprehensive medical-legal report) finding that one part of the body is permanent and stationary with existing disability, but the other injured part of the body does not become permanent and stationary until 2005.
The following example illustrates a case that falls under the old schedule based on the notice requirement under Labor Code section 4061:
- Temporary disability indemnity benefits stop for any reason in 2004 and the employer is required to provide notice under Labor Code section 4061. The old schedule still applies regardless of whether or not the employee's condition becomes permanent and stationary in 2005 because the employer was required to provide the notice prior to Jan. 1, 2005.
The following examples illustrate cases that fall under the new schedule because a report issued or will issue after Jan. 1, 2005 that indicates the existence of permanent disability:
- Date of the work-related injury is on or after Jan. 1, 2005
- Treating physician examination performed on or before Dec. 31, 2004, but the treating physician report indicating existence of permanent disability is dated on or after Jan. 1, 2005
- QME medical evaluation performed on or before Dec. 31, 2004, but the comprehensive medical-legal report indicating the existence of permanent disability is dated on or after Jan. 1, 2005
- Date of the work-related injury is on or before Jan. 1, 2005 but temporary disability indemnity payments continue after Jan. 1, 2005 and the first treating physician report or comprehensive medical-legal report indicating the existence of permanent disability is issued on or after Jan. 1, 2005.
For Dates of Injury (DOI) 1/1/05 through 12/31/12
Use the 2005 PDRS.
For DOI 1/1/13 and after
Use the 2005 PDRS with the changes enacted per Senate Bill (SB) 863 until such time a new PDRS is adopted.
SB 863 Changes to Permanent Disability Rating
Q: Are the (Future Earning Capacity) FEC modifiers still applicable?
A: For DOI 1/1/13 and after, the FEC modifiers with ranks 1 through 8 are no longer applicable and have been replaced by a 1.4 modifier in the rating formula. The WP impairment will be multiplied by the 1.4 modifier, rounded to the nearest whole number, and then adjusted for occupation and age. Here is an example of a rating for a 2013 DOI.
Lumbar Diagnosis related Estimate) DRE II: 8 WP
15.03.01.00 – 8 – [1.4]11 – 340G – 13 – 15 PD
Q: Does SB 863 affect ratings for sleep dysfunction, sexual dysfunction and psychiatric disorder?
A: There will be limitations of impairments for sleep arousal, sexual impairment and psychiatric impairment for DOI on or after1/1/13.
Labor Code 4660.1 (c) (1) states:
Therefore impairments for sleep arousal, sexual dysfunction, and psychiatric will not be included in the permanent disability rating when these impairments arise from a physical injury.
Q: Are there exceptions where psychiatric impairment may be included?
A: Yes there are times when psychiatric impairment may be rated even though it arising from a physical injury.
Labor Code 4660.1 (c) (2) states:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of LC 3208.3
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.
Q: Must the AMA Guides be strictly applied by the physician in all cases?
A: No, per the Guzman Appellate decision (ADJ3341185) the PDRS is prima facie evidence and therefore rebuttable. Therefore a physician may provide an alternative rating that accurately assesses impairment. In providing an alternative rating the physician must stay within the four corners of the Guides, but may use any chapter, table or method to provide an accurate assessment of impairment.
The physician should provide reasoning as to why a strict AMA Guides impairment is not an accurate assessment of impairment in the case, and reasoning behind the alternative impairment rating. The physician may not use work restrictions from the 1997 PDRS or simply use an alternative method to achieve a desired result.
Ultimately a WCALJ will review the physician’s reasoning and facts of the case to determine whether the physician’s impairment rating and reasoning constitutes substantial medical evidence. Therefore the physicians reasoning will be important when providing an alternative rating per Almaraz/Guzman.
Q: How does the DEU handle Almaraz/Guzman ratings?
A: The DEU will provide both a standard AMA Guides rating and an Almaraz/Guzman rating whenever applicable. For Almaraz/Guzman rating the DEU will still apply the PDRS rules of combining impairments and disabilities, unless the physician specifies an exception as part of the Almaraz/Guzman rating.
Q: Which combining chart do I utilize for a rating under the new schedule?
A: Use the combined values chart found in section eight of the new schedule. This is the chart that has been adopted by regulation and applies to all ratings under the new schedule. Do not use the combined chart contained in the AMA Guides.
For ratings under the 1997 Permanent Disability Rating Schedule, use the procedures for combining multiple disabilities on pages 81 and 82 of the 1997 schedule.
Q: As a primary treating physician, how do I evaluate subjective impairment under the new schedule? For example, I am evaluating a lower extremity impairment and have found no objective impairment under chapter 17. Can I give a 3% whole person impairment to this case due to the limitation of some activities of daily living?
A: No. The new schedule states that an impairment rating based on the body or organ rating system of the AMA Guides may be increased up to 3% for pain that is above and beyond the pain associated with the underlying impairment rating. Under the new schedule, a subjective impairment (pain) can only be used as a potential add-on to an existing impairment. (See illustration in question below)
Q: The evaluating physician finds both objective and subjective impairment under chapter 16 of the AMA Guides. The limitation of the elbow motion results in 10% upper extremity impairment with 1% for pain. Do I add or combine the impairments?
A: Add the subjective and objective impairment at the whole person scale. The 10% upper extremity impairment would convert to 6% whole person impairment using table 16-3 (page 439 of the AMA Guides), or by multiplying by .6, then adding the 6% to the 1% for pain, for a total of 7% whole person impairment.
Q: What tools are available to facilitate report writing for treating doctors under the AMA Guides impairment system?
A: Chapters 15, 16 and 17 of the AMA Guides have impairment evaluation charts that can be used by the evaluating physician. For example, the AMA Guides have a spine evaluation charts on pages 404, 410, 416 and 429; an upper extremities chart on pages 436-437 and a lower extremities chart on page 561. Also, the permanent disability regulations include a new PR-4 form that may be a useful tool. Form PR-4 is downloadable from the DIR Web site.
Summary Rating Process
Q: What if the employee refuses to complete the DEU 100 Employee Disability Questionnaire for a QME summary?
A: While every effort should be made for an employee to complete the DEU 100 form, if the employee refuses to complete it, the Qualified medical Examiner (QME) may still submit the QME packet to the Disability Evaluation Unit. Included in the packet submitted should be a blank DEU 100 form with a statement written on the form employee refused to complete. DEU will issue a summary rating with the annotation that a completed DEU 100 form was not received. The DEU Form 101 or DEU Form 102 must always be completed and submitted to DEU.
Q: How do I request a supplemental report on a summary rating?
A: There are two separate methods for requesting a supplemental report on a Summary QME report depending upon the circumstances.
When there is a factual error in the QME report
- QME Form 37 is submitted to DEU with copy to other party
- No new records are sent to QME. QME can review only QME form 37, original report and any documents reviewed for the original report
- QME has 15 days to respond if requested by Claims Administrator and 10 days if requested by injured worker.
- DEU will suspend QME Summary rating process for receipt of supplemental report and issue single rating based on original and supplemental report.
When a party wants the QME to review additional documents not available for the initial examination and report
- Write letter within 20 days of receipt of original QME report and send copy to DEU
- Letter requesting supplemental report should be mailed to QME after the Summary rating has been issued (best practice is to send a copy of the rating with the letter to the QME)
- Additional records or documents may be sent to QME, such as medical reports not received prior to the examination
- QME has 60 days to issue supplemental report