"Because I said so." We all remember this excuse our parents used for a decision they had no patience to justify to us. This is all too often the refrain used by many physicians in the Florida workers' compensation system when assigning impairment ratings for injured workers. A careful reading of the 1996 Florida Uniform Permanent Impairment Rating Schedule reveals that many of the ratings physicians assign to injured workers in the Florida workers' compensation system are incorrect based upon the physicians' flawed application of the schedule. This article discusses the history behind the promulgation of the 1996 Florida Uniform Permanent Impairment Rating Schedule (the guides) and an example of a common misapplication of the guides.
The guides are the result of the 1990 Florida Legislature's requirement that a three-member panel, in conjunction with the Division of Workers' Compensation, establish and use a uniform permanent impairment rating schedule. (1) An advisory panel of representative health-care specialists and a member of The Florida Bar assisted the three-member panel and the division. The impetus for promulgating the guides was the recognition that evaluation or rating of permanent disability is an important and complex subject, which in the past created much confusion from an inadequate understanding by physicians and others of the scope of medical responsibility in the evaluation of permanent impairment. Confusion often arose because of differences between permanent disability and permanent impairment. (2) According to the Florida Workers' Compensation Law, the assignment of a permanent impairment rating is a function that physicians alone are competent to perform. (3) The mandate for creating the guides recognized the importance for physicians to have the necessary authoritative material to direct them in competently fulfilling their responsibility of determining a permanent impairment. (4)
The Florida Legislature defines a permanent impairment as "any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury." (5) The guides provide basic rules for an evaluator to properly calculate an impairment rating. (6) The ratings for some injuries are determined through the application of relatively less challenging sections of the guides. Other injuries require more effort and concentration on the part of the physician to determine the correct rating. Some doctors resist working through the guides for some ratings. Instead, they opt to base a rating on a more readily identifiable or less laborious calculable method. The cause for this varies, whether it is because a physician is not properly remunerated for the effort, or it is viewed as the way it has always been done; or it is due to confusion, insecurity, or lack of experience.
A classic example of an incorrect determination of an impairment rating based on a flawed analysis of the guides is illustrative. (7) Assume the following hypothetical: A 40-year-old worker earning $750 a week injures his lower back in a compensable Florida workers' compensation case. He receives initial medical treatment at a local clinic. He presents with pain, limited range of motion in his lumbar area, and radicular complaints. After initial medical intervention at a clinic, the worker's symptoms persist. A lumbar MRI reveals a herniated disc at L5-S1. The injured worker is then referred to a spine specialist. The employer/carrier (E/C) selects the authorized specialist, who evaluates the injured worker and begins conservative treatment modalities, i.e., physical therapy and medications. Symptoms persist. The specialist then recommends the injured worker undergo epidural steroid injections (often a set of three injections). Unfortunately, the injections fail to provide the desired results for the worker due to the size and position of the spinal lesion. The specialist recommends and performs a one-level discectomy. The injured worker receives post-surgical physical therapy and appropriate medicinal intervention, and despite a short period of relief, the symptomatology returns. A repeat MRI reveals a recurrent disc herniation at L5-S1. The specialist then recommends and performs a lumbar fusion at L5-S1.8 After a recovery period, the injured worker has residual signs of radiculopathy and continues to report pain. The worker also complains to the specialist that he is unable to perform sexually and has issues urinating. He further complains that he feels depressed and incomplete. Based on these complaints, the specialist refers the injured worker for urological and psychiatric evaluations. The spine specialist also opines that, from his area of specialty, he reasonably believes the injured worker will not have any further lasting improvement and places the worker at maximum medical improvement. (9)
The spinal specialist also opines that the injured worker will have permanent exertional work restrictions that preclude the worker from engaging in any type of work other than in a sedentary capacity on a full-time basis. (10) The spine specialist now has the responsibility of calculating the injured worker's permanent impairment rating for the resultant spinal disorder. This article describes two approaches the spine specialist may take in making this calculation: 1) the "because-I-said-so" approach; and 2) an approach based upon a clear and plain reading of the guides. As will become apparent, the latter is the preferable approach.
"Because I Said So"
Most physicians in the Florida workers' compensation system seem to favor the "because-I-said-so" approach to calculating permanent impairment. All too often, physicians will calculate a rating under the disorder of the spine section of the guides in such a way that the existence of residual conditions is ignored. A physician's aversion to applying the guides to their fullest extent often puts the physician on the defensive when the rating is questioned. The physician's response usually is not that it was a proper application of the guides; instead, the explanation is, "it is this way, because I said so."
In our hypothetical, under the "because-I-said-so" approach, the spine specialist refers to the intervertebral disc or other soft tissue lesions section of the guides and notes that at no. 5, a surgically treated lumbar disc legion, with or without residual findings, yields a 7 percent rating. (11) The specialist then refers to no. 7 of the same section and notes that an additional 2 percent rating is appropriate since the injured worker underwent two surgeries. (12) The specialist then refers to no. 8 of the same section and assigns one additional point because the worker was fused at one vertebral level. (13) Based on his analysis, the specialist assigns the injured worker a 10 percent permanent impairment rating. The specialist believes the rating is correct and usually will not consider any further information on the issue of rating, which is problematic. This situation is all too familiar to workers' compensation practitioners; based on anecdotal evidence and this author's experience, the overwhelming number of specialists would rate this hypothetical injured worker in a similar fashion. However, in so doing, these physicians ignore the clear and plain reading of...