Contra Costa County v. Workers’ Comp. Appeals – Deviation of Presumed Impairment Rating

The North Carolina Industrial Commission follows a rating guide for evaluation of permanent disability and permanent physical impairment that is intended to assist physicians in evaluating workers’ compensation claims.
For example, a moderate deformity of the hip is given a total permanent impairment rating of 30 percent. A limitation of knee motion from 0 to 90 degrees is given an impairment rating of 15 percent. Quadriplegia is given a 100 percent impairment rating. These guidelines follow the recommendations set forth by the American Medical Association (AMA).

A doctor or the industrial commission may choose to deviate from these guidelines, but there has to be evidence to support that deviation. Many other state workers’ compensation systems abide by the same kinds of guidelines.

In the recent California case of Contra Costa County v. Workers’ Comp. Appeals Bd., the California Court of Appeals, First Appellate District, Division Two, ruled claimant failed to present sufficient evidence to deviate from the presumed impairment rating, as set forth by the state.

According to court records, the issue was the permanent disability rating of an injured workers’ compensation applicant.

Claimant had worked for eight years as a medical records technician. She was 49, had a bachelor’s degree and also a felony conviction for possession and sale of methamphetamine. She sustained injuries to her neck and shoulder while employed by the local county. These injuries resulted in numerous surgeries and scarring.

Later, a doctor and also the workers’ compensation commission determined her whole person impairment rating as a result of this injury, according ot the AMA guidelines, was 59 percent.

Claimant refuted this schedule rating with the testimony of her vocational expert. However, this is the only evidence she presented to counter the presumed ratings. Other accepted rebuttal methods (factual error in application of formula or severity of claimant’s injury not captured within sampling of disabled workers) were not used.

Her vocational expert testified that she was in the top earning capacity for employees in her position, taking home $26 an hour at the time of her injury. Her lost earning capacity, meanwhile, had reduced her earning capacity to about $9 an hour. Thus, he concluded her disability rating to be at 79 percent. He did acknowledge she was in a good position for rehabilitation and could also return to school for a master’s degree.

However, the county’s vocational expert countered the earlier witness was treating plaintiff as unskilled and uneducated, when she was not. However, he declined to take into account her felony conviction. He put her permanent disability rating at 30 percent.

The workers’ compensation judge set it at 59 percent, finding she failed to present enough evidence to sway him to deviate from the presumed rating.

State appellate court affirmed.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Contra Costa County v. Workers’ Comp. Appeals Bd., Sept. 24, 2015, California Court of Appeals, First Appellate District, Division Two

More Blog Entries:
Carpal Tunnel Syndrome and Workers’ Compensation, Oct. 4, 2015, Charlotte Workers’ Compensation Attorney Blog

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