Making Change Work: AMA Standards Part II

There is more we can do to promote the trend of decreasing permanency awards, specifically, at the end of Part I of this article. Even though the Commission has been somewhat critical of the impairment ratings to date, these critiques give respondents ways to improve and bolster this evidentiary tool. Remember, most, if not all, of the evidence presented for factors other than the impairment rating tends to come from petitioner’s own testimony. And, when there is no evidence from the respondent rebutting the testimony, the Arbitrator has no choice but to weigh the factor in petitioner’s favor. How do we combat this?

In order to strengthen defenses under the “new” approach, here are some tips for ensuring that at trial your hard work on the file will pay off and you will see those permanency awards decrease.

Impairment Rating Report

• Decide whether an AMA rating is right for your case (is the petitioner at MMI, is it cost effective given the nature of the injury?). In all cases for date of injury after September 1, 2011 you have the right to obtain an AMA rating. Without a rating, no weight will be assessed for this factor;
• Ensure that the medical provider is certified for the 6th Edition of the AMA Guidelines;
• Ensure the doctor has secured a functional history intake form, QuickDASH, PDQ or other recommended questionnaire from petitioner and that the doctor provides it to you before deposition or trial. Not providing it can undermine the opinion and less weight may be given to the rating;
• Scrutinize the report! Make sure the doctor used the diagnosis that would result in the highest impairment;
• The medical records should be reviewed by the evaluator prior to the examination so that petitioner’s complaints can be verified;
• Consider obtaining the rating when the petitioner has returned to full duty work so that any limitations due to work activity can be corroborated;
• Assess whether you need the doctor’s deposition prior to trial. A deposition can allow the doctor to go through his analysis in a more detailed manner on the record and add credibility to his testimony where needed.

Petitioner’s Occupation/Age/Future Earning Capacity

• Be prepared to offer evidence to rebut petitioner’s credibility in the event he/she testifies to extensive ongoing complaints that are not part of the medical records or your understanding of the petitioner’s current condition;
• Offer evidence to confirm the job description / category (light, medium, heavy);
• Offer evidence of co-workers or supervisor that petitioner has returned to full duty and has no complaints on daily basis;
• Provide evidence of recent job logs or time cards to show petitioner is back at full duty and working the full schedule;
• If for any reason the petitioner is not brought back to his/her pre-injury exact job, make sure to have evidence to prove the earnings are the same and that future earnings expectations have not changed.

Evidence of Disability Corroborated by Treating Records
(Essentially the “Old” Way)

• Know your medical records, have all treating records for the injury including physical therapy and most recent records for proof of any potential subjective complaints, or lack thereof;
• Know whether there are any pre-existing conditions that may contribute to any ongoing complaints that might be discussed at trial. Has a canvas been performed to search for this? Have you obtained the primary care physician records to address this issue as well?

All of these suggestions go toward the same goal, to provide the Arbitrator with something on which to rely to sway the weight of the factors in respondent’s direction, or at least back toward a middle ground.

As we have seen thus far, most reported cases under the “new” approach have the petitioner at MMI with a full duty release. In the months/years to come, it will be interesting to see how cases of a more disputed nature are analyzed under these factors and we will make sure to update you as these cases come through the Commission.