A spinal injury claim can be one of the most common types of Workers’ Compensation cases. Many of us are familiar with Panel Qualified Medical Evaluators (“PQMEs”) who incorrectly utilize the AMA Guides to provide impairment, and spinal impairments are no exception to this unfortunate situation. Many times PQMEs will use the Range of Motion (“ROM”) method for providing a spinal impairment when the Diagnosis Related Estimate (“DRE”) is the correct way to rate an applicant’s impairment level.
To summarize, the DRE method is considered to be the “principal methodology” used to evaluate an applicant who has a distinct injury, as described on page 379 of the AMA Guides (5th Edition.) Page 379 of the AMA Guides (5th Edition) goes on to describe that even if causation for the injury is not easily determined, if the impairment can be well characterized with the DRE method, it should be. The DRE method is to be used when there is only one level of radiculopathy involved.
There are narrow circumstances in which the ROM would be a more appropriate method for a PQME to provide a spinal impairment, such as:
- The cause of the injury is uncertain and cannot be classified in a DRE class;
- Multilevel involvement in the same spinal region;
- When there is alteration of motion segment integrity (eg. Fusion);
- Recurrent radiculopathy caused by a recurrent disk herniation, or recurrent injury of the spine;
- Where there are multiple episodes of other pathology producing altercation of motion segment integrity and/or radiculopathy.
Frequently the aforementioned narrow circumstances for a PQME to provide an impairment based upon the ROM method are not present when the ROM method is utilized. Typically a supplemental report request or deposition of the PQME can resolve this mistake. However, with every rule there are always exceptions. In the panel case of Sean Lawson v. Zenith Insurance Company (2019) Cal. Wrk. Comp. P.D. LEXIS 18 the court held that the ROM method could be utilized in the absence of multilevel radiculopathy. Ultimately, the court noted their ability to formulate instructions to the rater for a formal rating analysis, as the Workers’ Compensation Judge is the trier of fact and can determine which method of rating would be most appropriate, as seen in the reasoning in Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613 [Appeals Board en banc].
The take away is to closely scrutinize any ROM impairment a PQME provides for a spinal impairment, as there will be limited circumstances in which it is truly appropriate per the AMA Guides. The AMA Guides are the “rule”, but always be ready for an “exception to the rule” in situations where the PQME has a novel or unique way of justifying a deviation from the AMA Guides.