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Strategies to Assure Accurate Ratings

There are several strategies to assure accurate ratings, and to minimize misuse and abuse of the Guides. These include obtaining an accurate, unbiased rating; evaluating impairment ratings; managing erroneous ratings; and discrediting erroneous ratings. The first step is recognizing the high likelihood of error and becoming knowledgeable about the Guides.

Impairment evaluations should be performed by a board-certified in an appropriate medical or surgical specialty (www.abms.org), experienced in the assessment of injuries and the use of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, who has demonstrated competency in the performance of independent medical examinations, either being a Certified Independent Medical Examiner (American Board of Independent Medical Examiners, www.abime.org), a Fellow of the American Academy of Disability Evaluating Physicians (www.aadep.org), having obtained Certification in Evaluation of Disability and Impairment Rating (www.aadep.org) and/or a Certified Impairment Rater (www.certifiedrater.com). These organizations typically list their members at their websites. It is appropriate to determine if the physician has attended educational programs specifically on the use of the AMA Guides. Training in impairment evaluation is provided by American Academy of Disability Evaluating Physicians (www.aadep.org), American Academy of Orthopaedic Surgeons (www.aaos.org), American Board of Independent Medical Examiners (www.abime.org), American College of Occupational and Environmental Medicine (www.acoem.org ), Brigham Walker (www.brighamwalker.com), and other organizations. A careful review of that physician’s curriculum vitae and sample reports is often useful.

All impairment reports should be critically reviewed to determine the accuracy of the rating, i.e. was the rating performed consistent with the AMA Guides and does clinical data support the rating. Red flags are warning signals suggesting greater likelihood of an erroneous rating. All reports should be reviewed by a physician experienced in the use of the Guides. Clinical knowledge, skills and judgment are required to adequately analyze the clinical data and to appropriately apply the AMA Guides; this cannot be accomplished by a non-physician reviewer. The collection of data from individual reviews provides valuable insight to ratings.

Upon obtaining the results of a review, utilize this information for feedback to the initial rater in an attempt to correct an erroneous rating, as negotiation, as a basis for effective cross examination, and evidence. Often physicians will correct their prior erroneous ratings if constructive, tactful feedback is provided from a credible expert. The Guides provide a wealth of material for effective cross examination. Many physicians are unfamiliar with specific requirements defined in Chapters 1 and 2 and the rating chapters.

A 2005 Benefits Review Board decision by the U.S. Department of Labor, Peter J. Desjardins v. Bath Iron Works Corporation, BRB No. 05-333 (http://www.dol.gov/brb/decisions/lngshore/unpublished/Nov05/05-0333.htm), affirmed a Decision and Order (2004-LHC-1364) regarding the utility of impairment rating critique. The administrative law judge credited the rating opinion of an expert physician reviewer, who had not seen the claimant, over that of the treating physician. The appeals judges said:

Claimant appeals the Decision and Order (2004-LHC-1364) of Administrative Law Judge Jeffrey Tureck rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judge’s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

In 1982, claimant began working for employer as a pipefitter. His duties included repetitive pushing and pulling on pipe wrenches and turning valves, as well as fabrication and hand welding. In 1999, claimant was diagnosed with bilateral carpal tunnel syndrome. Claimant had surgery on his right hand on December 1, 1999, from which he recovered without residual impairment. Following surgery on his left hand on January 12, 2000, claimant developed tingling and numbness. He had additional surgery on this hand on October 11, 2000. Claimant continued to complain of problems in this hand, and he sought permanent partial disability benefits for a 20 percent left upper extremity impairment based on the opinion of his treating physician, Dr. Kalvoda. Employer voluntarily paid claimant for a four percent impairment, based on the opinion of its expert, Dr. Brigham.

In his decision, the administrative law judge credited the opinion of Dr. Brigham over that of Dr. Kalvoda and denied claimant benefits in excess of the four percent permanent partial disability benefits already paid by employer. On appeal, claimant challenges the administrative law judge’s finding that Dr. Brigham’s opinion is entitled to greater weight that of Dr. Kalvoda. Employer responds, urging affirmance of the administrative law judge’s decision.

In the event of an injury to a scheduled member, recovery for permanent partial disability is confined to that provided in the schedule at Section 8(c)(1)-(19) of the Act, 33 U.S.C. §908(c)(1)-(19), and is based on the degree of physical impairment. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 14 BRBS 363 (1980). The Act does not require that scheduled awards be based on the criteria of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) except in cases involving hearing loss and voluntary retirees. See 33 U.S.C. §§902(10), 908(c)(13), (23). Rather, the administrative law judge is not bound by any particular formula but may rely on a variety of medical opinions and observations in addition to claimant’s description of symptoms and the physical effects of his injury in assessing the extent of permanent impairment. See Pimpinella v. Universal Maritime Services, 27 BRBS 154, 159-160 (1993). The administrative law judge may, however, rely on a medical opinion based on the AMA Guides, as it is a standard medical reference. See, e.g., Jones v. I.T.O. Corp. of Baltimore, 9 BRBS 583, 585 (1979). Claimant contends that the administrative law judge unreasonably relied on the impairment rating of Dr. Brigham, a reviewing doctor who never examined claimant, over the opinion of his treating physician, Dr. Kalvoda, who performed claimant’s surgeries. Claimant also avers that while Dr. Brigham criticized Dr. Kalvoda’s application of the AMA Guides, his opinion is similarly faulty because Dr. Brigham did not personally examine claimant as the Guides require. Claimant argues that because it is well established that use of the AMA Guides is not required, the administrative law judge erred in giving undue weight to the procedures required by the Guides and to Dr. Brigham’s expertise concerning its application.

The administrative law judge properly noted that use of the AMA Guides to rate claimant’s impairment is not mandated by the Act, but stated that both physicians purported to rely on the Guides. In support of his claim, claimant submitted Dr. Kalvoda’s opinion that claimant has a 20 percent left upper extremity impairment based on the AMA Guides. The administrative law judge is entitled to evaluate the doctor’s opinion to determine whether it is well-reasoned and documented, including whether Dr. Kalvoda correctly applied the AMA Guides. See generally Cotton v. Army & Air Force Exchange Services, 34 BRBS 88 (2000); Pimpinella v. Universal Maritime Service Inc., 27 BRBS 154,159 (1993). Dr. Kalvoda’s opinion states in relevant part:

When using the Guides to Evaluation of Permanent Impairment put out by the American Medical Association, one finds that Mr. Desjardins has a moderate degree of impairment involving the left hand, which results in a 20% upper extremity impairment on the left, which can be changed to a whole person impairment of 12%. It principally involved the hypersensitivity radiating to the digital nerves from the ulnar aspect of the middle finger and the radial aspect of the ring finger.

CX 8 at 26. The administrative law judge found that Dr. Kalvoda offered no explanation beyond this assessment. The administrative law judge then relied on Dr. Brigham’s opinion concerning the deficiencies in Dr. Kalvoda’s opinion, and concluded that in light thereof he need not credit Dr. Kalvoda’s opinion merely because he is the treating physician. Id. The administrative law judge’s rejection of Dr. Kalvoda’s opinion on this basis is rational and is affirmed. See generally Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS 11(CRT) (1 st Cir. 1982); Bath Iron Works Corp. v. White, 584 F.2d 569, 8 BRBS 818 (1978) (1 st Cir. 1978).

The administrative law judge next examined the opinion of Dr. Brigham, who opined that claimant has a four percent impairment under the Fifth Edition of the AMA Guides. The administrative law judge found that Dr. Brigham’s opinion is based on the specifics of this case, and on his knowledge of the application of the AMA Guides, and warranted determinative weight based on Dr. Brigham’s credentials, experience, and the well-reasoned nature of the opinion. The administrative law judge rejected claimant’s contention that Dr. Brigham’s opinion is deficient because he did not examine claimant, as the administrative law judge credited Dr. Brigham’s opinion that the AMA Guides do not require a personal examination by the reviewing physician when adequate clinical documentation is available.

It is well settled that the fact-finder is entitled to weigh the medical evidence and to draw his own inferences from it and is not bound to accept the opinion or theory of any particular medical examiner. Todd v. Shipyards Corp. v. Donovan, 300 F.2d 741 (5 th Cir. 1962). Claimant has not demonstrated any error in the administrative law judge’s decision to credit Dr. Brigham’s opinion. See generally Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5 th Cir.1962), cert. denied, 372 U.S. 954 (1963). Specifically, the administrative law judge rationally credited Dr. Brigham’s statement that it was not necessary that he personally examine claimant due to the adequacy of the information provided in Dr. Kalvoda’s records. To the extent that claimant seeks a re-weighing of this evidence, it is beyond our scope of review. See Burns v. Director, OWCP, 41 F.3d 1555, 29 BRBS 28(CRT) (D.C. Cir. 1994). Therefore, as the credited opinion of Dr. Brigham’s constitutes substantial evidence supporting the administrative law judge’s finding, we affirm the administrative law judge’s determination that claimant suffers from a four percent permanent impairment to his upper left extremity.

This decision demonstrates the benefit of impairment rating review and the fact that the reviewer does not need to personally examine the individual if adequate clinical information is provided. The expert reviewer can provide evidence for the fact finder to “evaluate the doctor’s opinion to determine whether it is well-reasoned and documented.”

The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition are widely used and most of ratings are erroneous and higher than appropriate. These errors are often due to bias, confusion, and misapplication of the Guides. To perform or manage ratings, you must be familiar with the appropriate use of the Guides. You need to observe for potentially erroneous ratings, utilize expert physician reviewers to critique these ratings, and be able to explain errors to other participants and to the court.

Continue to Red Flags to Erroneous Impairment Ratings