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“DEU Guidelines for Use of the
Old v. New Permanent Disability Rating Schedules”
The Disability Evaluation Unit has recently issued guidelines on
August 2, 2005 (appearing in the DWC Newsline) regarding use of the
old/new Permanent Disability Rating Schedule (PDRS).
by Robert B. Hill
Referring to Labor Code Section 4660(d), the DEU notes:
“The schedule shall promote consistency, uniformity, and
objectivity. The schedule and any amendment thereto or revision
thereof shall apply prospectively and shall apply to and govern only
those permanent disabilities that result from compensable injuries
received or occurring on and after the effective date of the
adoption of the schedule, amendment or revision, as the fact may be.
For compensable claims arising before January 1, 2005, the schedule
as revised pursuant to changes made in legislation enacted during
the 2003-04 Regular and Extraordinary Sessions shall apply to the
determination of permanent disabilities when there has been either
no comprehensive medical-legal report or no report by a treating
physician indicating the existence of permanent disability, or when
the employer is not required to provide the notice required by
section 4061 to the injured worker.”
The DEU also notes that the rating specialist must be provided with
as much information as possible to determine the appropriate
schedule to use. Three criteria are important to make this
determination:
1. The date a comprehensive medical-legal report issued indicating
the existence of permanent disability.
2. The date a treating physician report issued indicating the
existence of permanent disability
3. Whether the employer was required to provide a notice under Labor
Code section 4061 to the injured worker.
The DEU than notes the following examples that would fall under the
old schedule because a report issued prior to January 1, 2005 that
indicates the existence of permanent disability:
• Comprehensive medical-legal report issued on or before December
31, 2004 declaring the employee's condition permanent and stationary
and indicating the existence of permanent disability
• Treating physician report issued on or before December 31, 2004
declaring the employee's condition permanent and stationary and
indicating the existence of permanent disability. A panel qualified
medical examiner (QME) examines the employee in 2005 and issues a
comprehensive medical-legal report finding permanent disability. The
old schedule applies regardless of the 2005 date of the
comprehensive medical-legal report because there is a treating
physician report issued on or before December 31, 2004 declaring the
employee's condition permanent and stationary and indicating the
existence of permanent disability
• Disability to multiple parts of the body (for example, injury to
wrist and neck) where there is a report on or before December 31,
2004 (either a primary treating physician report or a comprehensive
medical-legal report) finding that one part of the body is permanent
and stationary with existing disability, but the other injured part
of the body does not become permanent and stationary until 2005.
The following example illustrates a case that falls under the old
schedule based on the notice requirement under Labor Code section
4061:
• Temporary disability indemnity benefits stop for any reason in
2004 and the employer is required to provide notice under Labor Code
section 4061. The old schedule still applies regardless of whether
or not the employee's condition becomes permanent and stationary in
2005 because the employer was required to provide the notice prior
to January 1, 2005.
The DEU then notes following examples that fall under the new
schedule because a report issued or will issue after January. 1,
2005 that indicates the existence of permanent disability:
• Date of the work-related injury is on or after January 1, 2005
• Treating physician examination performed on or before December 31,
2004, but the treating physician report indicating existence of
permanent disability is dated on or after January 1, 2005 . Note
there is an issue here if the doctor verbally communicated the
permanent and stationary status prior to January 1, 2005, resulting
in the termination of TTD benefits or the requirement to issue a
notice of termination.
• QME medical evaluation performed on or before December 31, 2004,
but the comprehensive medical-legal report indicating the existence
of permanent disability is dated on or after January 1, 2005
• Date of the work-related injury is on or before January 1, 2005
but temporary disability indemnity payments continue after January
1, 2005 and the first treating physician report or comprehensive
medical-legal report indicating the existence of permanent
disability is issued on or after January 1, 2005.
Other issues addressed by the DEU:
o Multiple disabilities: Use the combined values chart found in
section eight of the new schedule. This is the chart that has been
adopted by regulation and applies to all ratings under the new
schedule. Do not use the combined chart contained in the AMA Guides.
For ratings under the old schedule, use the procedures for combining
multiple disabilities on pages 81 and 82 of the old schedule.
o Subjective disabilities: The new schedule states that an
impairment rating based on the body or organ rating system of the
AMA Guides may be increased up to 3% for pain that is above and
beyond the pain associated with the underlying impairment rating.
Under the new schedule, a subjective impairment (pain) can only be
used as a potential add-on to an existing impairment. (See
illustration in question below):
o Add the subjective and objective impairment at the whole person
scale. The 10% upper extremity impairment would convert to 6% whole
person impairment using table 16-3 (page 439 of the AMA Guides), or
by multiplying by .6, then adding the 6% to the 1% for pain, for a
total of 7% whole person impairment.
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