The AMA Guides are inconsistent between chapters. A worker who has to take medications and has to visit a doctor for hypertension but can still perform his or her job gets a higher rating than a worker with a post surgical back with leg pain who is no longer able to do physical work and looses his or her career as a result of the injury. An assembly worker with carpal tunnel who has an operation but can't return to repetitive work might get 5% to 10%, but a worker with very minimal psychiatric issues can get a rating of 25%. In short, the orthopedic injuries that lower income workers suffer from and are by far the most dominant type of injury are rated very low and the few internal and psyche problems that upper class workers get rate higher. The Guides have subjectivity and there are still disagreements between doctors regarding the ratings. Also, the rating depends on how well the doctor understands the AMA Guides and how willing the doctor is to give the injured worker the full impairment rating that accurately reflects the injured workers impairment as defined by the AMA Guides. To add insult to injury, the Administrative Director of the Department of Industrial Relations did not use any empherical data in determining the adjustment factors for the new permanent disability system as required by law. At this point, the defense attorney hacks and insurance company lackeys will say that I am wrong and that the Director used the 2004 Rand Report. This argument has no merit. First, the Rand Report proposed adjustments to the old system permanent disability rating schedule to adjust between parts of the body. Rand felt that knee injuries were being paid too much and psychiatric injuries were being paid too little. Rand proposed adjustments to make the schedule more equitable between body parts. The modifications that Rand used had nothing to do with the AMA Guides percentages. The AMA Guides do not even address diminished future earnings capacity. The Rand 2004 Rand study has nothing to do with coming up with modifying factors to make the AMA percentages reflect diminished future earnings capacity. There is no data to support the current modifying factors other than the "policy judgment" by the Administrative Director. In effect, the new California permanent disability rating system is almost a strait AMA system with minor modifying factors. The result has been cuts in permanent disability benefits by 50% to 70%. This is not even taking into consideration the very draconian apportionment rules that now allow employers and insurance companies to subtract from the already dramatically lowered compensation for such factors as age, race, sex, national origin, as well as asymptomatic pre-existing conditions which are aggravated and are now symptomatic due to the work injury. The goal of these changes is to chase applicant attorneys out of the system. Most of the defense attorneys will also be gone. Once the attorney's are removed form the system, the way is clear for even more draconian laws to further dismantle the workers' compensation system. Eventually, if there is no change, workers' compensation will really only serve as a liability shield (Exclusive Remedy) for employers and will exclude many, mostly older, employees from coverage and offer scant benefits. Insurers are already reaping enormous profits. Meanwhile, the bill is being passed to the taxpayers in the form of increased Social Security Disability payments, higher Medicare and MediCal roles, and more emergency room use. Permanent disability, while only responsible for about 20% or less of total workers' compensation system costs, is the key to the entire system. Applicant lawyers charge a state mandated percentage which is based mostly on the permanent disability of the injured worker. The attorney fee comes out of the injured worker's recovery and is not paid by the insurance company. The goal of the employers and insurers is to gut the permanent disability benefit so that lawyers find representing injured workers unattractive. The result is that there will be no one to police the workers' compensation system to ensure that the injured worker is treated properly and fairly by the system. The reason why lawyers started to get involved in the system was because of the abuse by the insurance industry and employers. The lawyers who started representing injured workers in the 1930's and 1940's in California came out of the labor movement and were not motivated by high fees. The fees were low and most lawyers shunned the work that these pioneers pursued. These were not "greedy trial lawyers" but good people who genuinely wanted to help the injured worker. I am fortunate to have known some of these pioneer applicant lawyers. I suspect that at some point in the future, the insurance industry and employers will continue to abuse the new found power they have and that either the system will be changed again to give a level playing field for the injured worker or eliminated altogether if there is national health insurance in place.
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