Increasing the Role of the WCJ in Rating Permanent Disability
In a recent en banc panel decision, the WCAB confirmed it is ultimately the responsibility of the WCJ to determine the proper whole person impairment (WPI) and permanent disability (PD) rating. In Blackledge v. Bank of America, the roles of the physician, workers compensation judge and rater are better outlined when determining the whole person impairment and permanent disability rating.
It is the responsibility of the physician to assess the injured worker and provide his assessment of whole person impairment pursuant to the AMA Guides and case law.
The WCJ provides the instructions for proper rating pursuant substantial medical evidence and case law. These instructions must be based on substantial medical evidence that specifically and fully describe the WPI to be rated. The WCJ may ask the rater to offer an expert opinion on what WPI should or should not be rated.
The rater provides an informal rating of permanent disability based solely on the WCJ instructions. The rater cannot issue a rating based on his own assessment of whether the WPI instructions are based on substantial evidence or are compliant with the AMA Guides. The rater can only provide a personal assessment if specifically instructed to do so by the WCJ. There must be no ex parte communication between the WCJ and the rater.
The WCJ is not bound by the rater’s recommendation and is free to independently rate the applicant’s permanent impairment. Neither the rater nor the physician can become the trier of fact. It is the responsibility of the WCJ to determine what information is deemed substantial evidence for rating purposes. Through WCJ instruction and proper use of non-formal ratings, potential AMA Guides rating problems may be minimized.