By Robert G. Rassp, Law Offices of Robert G. Rassp
The following is a real-life example of how to figure out a WPI rating.
Strict rating:15% WPI (see below)
Alternative rating method A: Add rating for functional impairment (grip loss) with rating for anatomic loss (15% WPI from strict rating).
Alternative rating method B: Ask physician what percentage loss of use of the hand for ADL and work functions exist due to permanent objective medical findings using Table 16-2.
Facts of case
This is a real case where a $15,000 compromise and release was submitted to a judge for approval, and the question was whether the settlement was adequate and should be approved.In this case, the injured worker was not represented by legal counsel, but the results here would apply regardless of whether or not the injured worker was represented.A judge has a duty to develop the record if a proposed settlement that is submitted for approval is deemed not adequate.The problem is, where does one draw a line between a judge's duty in determining adequacy of a settlement as opposed to his or her acting as an advocate for the injured worker?We will not get into a discussion of this issue because of the broad discretion of workers' compensation judges.However, judges are free to send interrogatory questions to treating and evaluating physicians or order their testimony on medical-legal issues as long as the parties are allowed to also make inquiries.This is true regardless of whether or not an injured worker is represented by legal counsel.
In this case, the injured worker is a 29-year-old journeyman carpenter, who was cutting wood on a table saw when the wood jammed and his left thumb, index and long fingers were lacerated by the blade.In addition to the complex lacerations, the injured worker had: several open fractures, left hand; digital nerve laceration left index finger; inter-articular fracture PIP joint left long finger; flexor tendon injury left index finger; loss of sensitivity of the ulnar border of the left thumb; and partial amputations of the left thumb and left index finger.
The treating physician indicated MMI status one-year post injury and opined in his permanent and stationary report the above-listed objective findings.In addition, in the physical examination section of his report, the physician indicated that the injured worker lost 50% of his grip and pinch strength in his left hand.However, in his WPI rating calculations, the physician did not include any reference to the functional impairment from the grip and pinch strength loss.Instead, he assigned a 15% WPI rating utilizing the anatomic losses and using strict ratings from Chapter 16 of the AMA Guides based on the left thumb partial amputation, loss of motion and sensory loss; left index finger loss of motion, sensory loss and partial amputation; left middle finger loss of motion and passive medial-lateral instability.
In addition, the physician opined that the injured worker was permanently restricted as follows:“…no performing frequent repetitive gripping, grasping, holding and heavy lifting” with the left hand.The report does not state which hand is dominant, but under a strict WPI rating under Chapter 16 of the AMA Guides, physicians do not take a person's dominant upper extremity side into account in establishing a rating.
The physician did not include in his WPI rating consideration for the documented 50% grip and pinch strength loss, nor the documented cosmetic disfigurement to the injured worker's left hand, thumb and fingers.In the final 15% WPI rating, the physician accounted only for the anatomic deficits and did not include any consideration for the functional deficits as a result of all objective medical findings.
Remember, the question is whether a $15,000 compromise and release is adequate in this case.The 15% WPI rated out to 19% permanent disability for a 29-year-old carpenter, which is equal to $16,215!So clearly, a $15,000 compromise and release is not adequate on its face!But neither is the medical report from the treating physician.
Alternative rating method A
The first alternative rating method would require the physician to take into account all of the permanent objective medical conditions and not just the measured losses of motion, sensory deficits, joint instability and partial amputations, i.e., the anatomic deficits.In the physical examination section of the MMI report, the physician indicated in the grip and pinch strength tests that the injured worker lost 50-60% of his strength on the left hand and he was using good effort in using the dynamometer.If the physician had used Tables 16-31 through 16-34, he would see that the injured worker would have a 12% WPI rating for the grip strength loss.If you add the 15% WPI rating based on the anatomic loss to the 12% WPI grip strength loss based on the functional deficits, then the total WPI rating would be 27% WPI.In addition, the physician never considered as part of the WPI rating any of the cosmetic disfigurement of the left hand that he documented in the physical examination part of his report.The cosmetic disfigurement would be ratable under Chapter 8 of the AMA Guides, but only 1-2% WPI.
The problem with the WPI measurements for anatomic losses is that there is nothing stated by the authors of Chapter 16 that ties any of the anatomic impairment ratings into the effects of those losses on ADL functioning.There is merely an assumption that each anatomic rating corresponds with some consideration for functional loss, but no one knows what those precisely are.Also, as stated in Chapter 1 of the AMA Guides, the WPI ratings from the entire book take only into account the effects of an impairment on ADL functioning, and there is no consideration for work function impairment.
Thus, a physician or a judge, with the correct and reliable permanent objective medical findings, could justify adding a WPI impairment rating based on anatomic losses to WPI ratings for functional losses in a case like this one.In this case, when you read the actual strict ratings for digital, hand and ultimately WPI ratings, you cannot tell how these ratings reflect how these anatomic deficits affect the injured worker's hand function in either ADL or work activities.Since a WPI rating must be accurate in terms of what the injured worker's permanent disability is as a result of this injury, a judge could justify adding the WPI rating for the anatomic losses to the WPI from the functional losses as long as there is no evidence of overlap between the two, and in this case, there does not appear to be any overlap between the two ratings.
Alternative rating method B
The second alternative method of rating this case probably results in the same WPI rating as the first alternative rating method discussed above.It appears that based on the permanent objective medical findings listed above, including the grip and pinch strength loss, the sensory deficits, the partial amputations and the physician's listed permanent work restrictions that the injured worker lost 50% use of his left hand for ADL and work functions.Table 16-2 is a conversion chart that converts hand impairment to upper extremity impairment.Based on Table 16-2, the hand is 90% of the upper extremity.We know that the upper extremity is 60% of the whole person, based on Table 16-3.So an amputated hand is 54% WPI (90% of 60%; see Figure 16-2 on page 441 of the AMA Guides for each part of the upper extremity and the corresponding total loss of function for each sub-part).If an injured worker loses 50% of hand use for ADL and work functions, he or she would have a 27% WPI rating.
This second alternative method would require permanent objective medical findings such that exist in this case.It is clear that this 29-year-old carpenter is significantly affected by this injury to his left hand.Since this injured worker is not represented by legal counsel, the judge may send an interrogatory to the physician that simply asks: “Based upon the objective findings that you list in the physical examination section of your report that are a result of this industrial injury, what percentage of loss of use of the left hand does this applicant have with respect to ADL and work functions?See Tables 16-2 and 16-3 of the AMA Guides 5th edition.”
Judges are permitted to send interrogatory letters to treating and evaluating physicians on medical-legal issues with a Notice of Intention to Send Interrogatory to Physician that allows parties, represented or not by legal counsel, to also ask written questions like this to the physician in lieu of live testimony by the physician.Due process considerations require the judge to allow the parties to also ask a physician written questions, to object to questions asked by the judge, or for the judge to order live medical testimony upon a finding of good cause.
So what does this case rate?
So does this case rate 15% WPI or 27% WPI?The strict rating under the AMA Guides would only permit the anatomic impairments to be rated, which mysteriously include loss of ADL functions that are embedded within those anatomic ratings.However, when you consider the loss of work functions in a case like this, which the AMA Guides do not take into account, one or both of these two alternative rating methods probably result in a more accurate permanent disability rating.