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In a prior article entitled “The “New” Role
for
Vocational Rehabilitation in the California Workers’
Compensation
System: A Comprehensive Vocational
Rehabilitation Evaluation,”
I discussed a multi-step
vocational evaluation to deal
with issues of return to
work, the retraining voucher,
and determination of lost earning capacity. With the
WCAB’s recent en banc
decisions in the Almaraz/Guzman and
Ogilvie, it seems relevant
to revisit the role of Vocational Rehabilitation providers
and experts as to how they can best be utilized to
facilitate resolution of workers’ compensation
cases.
By way of review, in Almaraz/Guzman the following was
determined:
- the AMA
Guides portion of the 2005 schedule is rebuttable
and not conclusive;
- The
Labor Code requires that the AMA Guides be considered
but does not make the AMA Guides determinative in
assessing an injured employee's impairment;
- the AMA Guides
does not measure work impairment and actually excludes
work from the activities of daily living considered;
- the AMA Guides are just a “first step” in
determining work impairment; information and evidence
outside of the Guides may be considered, including
the impact of the medical condition regarding the
performance of work activities;
- the evaluating physician,
utilizing their own judgment, can modify an impairment
rating
- The AMA Guides do NOT measure work impairment,
but do address the impact of impairment on other
activities of daily living.
Specific to the role of Vocational
Rehabilitation experts, in Almaraz/Guzman the Commissioners
had the following to say:
“Thus, the AMA Guides
recognizes that an injured employee’s impairment
assessment is not necessarily limited to an evaluation
of an injured employee’s “anatomic loss” (damage
to an organ system or body structure) or “functional
loss” (a change in function for an organ system
or body structure) (see AMA Guides, § 1.2a, at
p. 4) via the framework of the Guides’ various
chapters. Instead, a physician may assess how the industrial
injury will affect the employee’s ability to
return to his or her job. Further, with respect to
the broader job market, other evidence may be appropriate – specifically
including the expert opinion of “vocational specialists” (p.17).
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For
Robert Hall’s article,
“Pain Disorders and their Impact on Employability and Future Earning Capacity,”
click
here
For
Robert Hall’s article,
“The New PDRS and the Determination of DFEC,”
click
here
For Robert Hall’s article, “Determining Diminished
Earning Capacity in the California Workers' Compensations
Program:
The "SEDEC" Method,”
click
here
For Dr. Hall’s article, “The "New"
Role for Vocational Rehabilitation in the California Workers'
Compensation System: A Comprehensive Vocational Rehabilitiation
Evaluation,” click
here
For Robert Hall’s article, “Multiple Impairments
and Their Impact on the DFEC Analysis,” click
here |
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With regard to Ogilvie, the WCAB decision stated:
“The Appeals Board held in substance that:
(1) the Diminished Future Earnings Capacity (DFEC)
portion of the 2005 Schedule is rebuttable; (2) the
DFEC portion of the 2005 Schedule ordinarily is not
rebutted by establishing the percentage to which
an injured employee’s future earning capacity
has been diminished; (3) the DFEC portion of the
2005 Schedule is not rebutted by taking two-thirds
of the injured employee’s estimated diminished
future earnings and then comparing the resulting
sum to the permanent disability money chart to approximate
a corresponding permanent disability rating; and
(4) in the usual case, the DFEC portion of the 2005
Schedule may be rebutted only in a manner consistent
with Labor Code section 4660 – including section
4660(b)(2) and the RAND data to which section 4660(b)(2)
refers.
This holding involves the application or
interpretation of Labor Code section 4660(c), which
continues to state: "This schedule…shall
be prima facie evidence of the percentage of permanent
disability…." The Appeals Board has previously
held in prior en banc decisions in Costa
I (71 Cal.Comp.Cases
1797) and Costa II (72 Cal.Comp.Cases 1492) that,
pursuant to this section and case law, the percentage
of disability resulting from the 2005 Permanent Disability
Rating Schedule is rebuttable. This decision discusses
how the DFEC portion of the schedule can be rebutted”.
Ogilvie lays out a step-by-step method for determining
whether the PDRS is rebutted on a particular case.
I will not go into this formula in detail, but it can
be reviewed in the Ogilvie decision [see Ogilvie
v. City and County of San Francisco.]
- Establish the
injured employee’s individualized
proportional earnings loss. The four-step process provided
is detailed and includes a wage earning analysis for “similarly
situated” employees;
- Divide the employee’s
standard Whole Person Impairment Rating by his or
her proportional earnings loss to calculate an individualized
ratio of rating over proportional earnings loss;
- Determine
whether an injured employee’s individualized
ratio of rating over proportional earnings loss rebuts
the DFEC portion of the 2005 Schedule.
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As is often stated, but seems to be commonly misunderstood, “impairment” and “disability” are
two different things. One way of looking at it is that “impairment” is
about the person, the impact of injury or illness,
a medical condition, on the bodily systems and the
ability to perform various activities, sometimes called
functional capacities. Where “impairment” is
about the person “disability” is about
the interaction of the impairment with an environment,
which could be home, community, or work environments,
Depending on the demands of these environments, a specific
medical condition or “impairment” might
be disabling or not. Logically, this is why a person
with functional limitations with regard to lifting,
carrying, and overhead reaching can be significantly
disabled with regard to their “activities of
daily living” but, because they are an Accountant,
much less impacted at work.
Of most relevance to these discussions are the publications
of the American Medical Association (AMA), since the
Labor Code is clear that AMA “impairment” rating
is the start of the process in determining “disability.” SB
899 mandated use of the AMA Guides to the Evaluation
of Permanent Impairment, 5th Edition. As discussed in
the Guides, they cannot be used to make direct estimates
of “work disability”, but are intended for
more general use as an estimate of “whole person
impairment” and an “individual’s overall
ability to perform activities of daily living”.
The Guides do describe a process for determining functional
limitations or “work restrictions” (i.e.,.
what a worker can and cannot do and how activity might
aggravate the medical condition).
The AMA Guides and the AMA’s Disability Evaluation,
2nd Edition identify the larger issues surrounding determination
of “disability” and “earning capacity”.
These factors are listed as follows:
- an individual’s age, education, acquired
skills, knowledge, and work performance;
- an
individual’s motivation and adaptation to change;
- work requirements;
- work environment;
- state
of the job market;
- local economic conditions;
- past earnings and future potential earnings.
Thus, per the AMA, the role of the “Vocational
Rehabilitationist” is to “bridge the gap” between “work
limitations” and “disability” as reflected
in diminished employability and earning capacity. In
order to form opinions regarding employability and diminished
earning capacity, the Vocational Rehabilitationist must
sequentially evaluate an individual in terms of what
they can offer a potential employer. In the above cited
article regarding “The “New” Role for
Vocational Rehabilitation” I also listed the steps
that a comprehensive vocational rehabilitation evaluation
would consist of.
For more information on these concepts
of person and environment, interested readers can also
research the publications of the World
Health Organization.
With consideration of the Almaraz/Guzman and Ogilvie
decisions, the following model is proposed to help articulate
the needed steps to determine work impairment, disability,
and diminished earning capacity:
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| Evaluation Need |
Description |
Determined By |
| Pathology |
Herniated Disc in Low Back |
Medical Exam & Tests |
| 1) Impairment |
Pain, Muscle Spasms, Weakness,
Fatigue |
Medical Exam & Tests |
| 2) Functional
Limitation |
No lift/carry > 20 lbs., No
repetitive bend/twist No stand or sit > 4 hrs in 8
hr day |
Physician Opinion and/or Functional
Capacity Evaluation |
| 3) Work Impairment |
Impact of functional limitations
on job specific work tasks & activities |
Analysis of impact of the impairment(s)
on a single occupation or a broad class of occupations. |
| 4) Work Disability |
Loss of employability & labor
market access |
Employability and Labor Market
Studies |
| 5) Diminished
Earning Capacity |
Loss of earning capacity over
time |
Earning Capacity Study Ogilvie
Analysis |
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In this above model,
physicians and/or allied health care practitioners providing
functional capacity evaluations, perform “impairment” related
steps 1, 2, and 3. For step #3, additional information
from the outside will likely be needed, such as job analyses,
essential function descriptions, and more generic descriptions
of the demands of a “class of jobs”, such
as “clerical/administrative positions”. Vocational
rehabilitation experts can provide these types of documents
for medical review and opinion as to what degree the
person is impaired from these types of single job or “class
of job” work activities.
Additionally, determination of the “future earning
capacity” of a work-impaired person is a reasonably
complicated matter. Issues such as the competiveness of
a person’s skills and education, labor force participation
rates, and disability statistics should be a part of this
analysis. Per Ogilvie, when injured workers have limited
or non-existent earnings following injury, an “earnings
capacity” study must be conducted. Anything short
of this will not provide valid or reliable earnings capacity
estimates as is required in this legal setting. Only professionals
who are properly trained at the graduate level and are
experienced in vocational evaluation and job placement
of persons with disabilities have adequate background for
providing defensible expert reports and testimony on reasonably
complicated issues such as these.
In summary, Vocational Rehabilitation experts are
a resource that can be utilized to help “bridge the
gap” between “impairment” and disability” determinations.
For obvious cost and efficiency considerations, it will
be tempting to try and short-circuit this process, asking
physicians to step out of their arena and address work-related
issues. It can be anticipated that this approach will fall
short in many ways. Instead, over time it will likely prove
more productive to explore innovative and cost-effective
ways to include information from vocational rehabilitation
experts in these determination processes. |
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About the Author:
Dr. Robert Hall has worked in the vocational evaluation
and rehabilitation field since 1973 and has maintained
his own consulting practice in San Diego since 1980.
Dr. Hall frequently serves as an expert witness on
personal injury, employment law, and spousal support
cases. Dr. Hall has a Ph.D. in Human Rehabilitation
from the University of Northern Colorado. Since 1994,
he has been the Director of the Work & Health Technologies
Center at San Diego State University and is an Adjunct
Professor in SDSU’s graduate Rehabilitation Counseling
Program.
Robert Hall, Ph.D.
Certified Rehabilitation Counselor
Certified Disability Management Specialist
Hall Associates
7290 Navajo Rd. #105
San Diego, Ca. 92119
Phone: (619) 463-9334
Fax: (619) 463-9337
info@rehabsource.org
http://www.rehabsource.org/
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