No Automatic Grip-loss Rating without Medical Legwork First
The American Medical Association’s Guide to the Rating of Permanent Impairment, 5th Edition, has two very, very dirty words. In the less “open-minded” and “modern” venues of California’s workers’ compensation system, an attorney could face sanctions for even thinking them, let alone saying them. The two dirty words? “Grip Loss.”
Grip loss is a go-to for upper extremity impairment because it offers the applicant an opportunity to get a maximum recovery for, quite literally, minimum effort. The less effort exerted by the applicant in performing the grip loss test, the higher the impairment can be assigned as a result of the injury.
The AMA Guides frown upon grip loss, and generally don’t allow the grip loss to be rated in the presence of other impairment to the upper extremity. For example, if you have an amputation of the fingers or the hand or the arm, you can expect a considerably weaker grip. (See AMA Guides, Page 507).
Grip loss can be used in “rare” cases, when the other methods of rating impairment do not adequately consider grip loss.
But that doesn’t stop some evaluating physician from disregarding the restrictions of the Guides and uttering the following phrase: “Hocus Pocus, Almaraz Guzmanaus, Alacazam!” and *POOF* triple whole person impairment!
That’s what happened in the case of Angelina Kendrick McGee v. State of California, Department of Justice. There, the Agreed Medical Evaluator rated grip loss in the presence of carpal tunnel syndrome, without providing “any analysis to justify a departure from the Guide’s limitation of impairment ratings based on grip loss to ‘rare cases.’”
The Workers’ Compensation Appeals Board reversed the workers’ compensation Judge’s findings and award, issuing, instead, a new award which excluded the grip-loss rating.
Now, it’s important to note something here, dear readers. In days gone by, the workers’ compensation Judge may have elected to “develop the record” and give the applicant’s attorney a chance to solicit additional deposition testimony or perhaps a supplemental report from the AME, allowing him to lay the foundation for an Almaraz/Guzman rating. But here are some things to remember:
- Discovery closes at the Mandatory Settlement Conference;
- The party seeking to rebut the AMA Guides bears the burden of proving a rebuttal (magic words have no power before the Workers’ Compensation Appeals Board);
- Unless there has been a rebuttal, the AMA Guides should be used on a “straight rating” basis.