California: Rating Eye Injuries Using the AMA Guides

One of the most famous and graphically intense workers’ compensation cases of all time is the 1959 case of SCIF v. IAC (Wallin) (1959) 176 Cal.App.2d 10, 1 Cal.Rptr. 73, 24 Cal Comp Cases 302 [24 CCC 302]. On 2/15/1957, Mr. Wallin, a carpenter, suffered an industrial injury resulting in the total loss of vision in his left eye. The 1st District Court of Appeal described the injury as follows, “A rusty nail which he was driving into the floor flew up and penetrated his eyeball.”

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For several months after the accident, Mr. Wallin kept himself busy relearning how to navigate through his environment, using only his right eye. His recuperation included use of his carpentry tools so that he would be able to return to his usual and customary occupation. One evening, he was using a power tool to cut wood for his fireplace. Due to the loss of vision in his left eye, his depth perception was off and he accidentally amputated one of his fingers. This second injury to his hand was deemed a compensable consequence of the first injury, the loss of Mr. Wallin’s left eye. He was therefore able to recovery workers’ compensation benefits for both injuries.

Ortega v. Building Technologies, Inc.

Fortunately, these tragic industrial eye injuries are rare. Historically, there has been a dearth of guidance on how to rate whole person impairment (WPI) for these types of injuries, especially using the AMA Guides. However, this issue was recently thoroughly addressed in the noteworthy panel decision of Ortega v. Building Technologies, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 395 [2015 Cal. Wrk. Comp. P.D. LEXIS 395], provides guidance on how to rate WPI for vision loss as a result of an industrial eye injury. In Ortega, the applicant suffered a significant injury on October 21, 2004, when a metal strap with an attached screw snapped free and punctured his right eye. Although he underwent multiple surgeries to the right eye, he had significant impairment to his vision in that eye, approaching blindness. At the time of his injury, the vision in his left uninjured eye was 20/20. But by the time his right eye injury became permanent and stationary, he had started to develop glaucoma in his left uninjured eye. As a result, the vision in his left eye was substantially compromised.

The applicant’s QME in this case, Dr. Vishteh, attempted to follow the instructions from the AMA Guides when it came time to rate Mr. Ortega’s eye injury. The AMA Guides explain at page 277 that rating for the “visual system is unique in that it combines input from two separate eyes into a single visual perception.” Since the AMA Guides are focused on rating impairments in a uniform measurable fashion to determine the impact of the injury on the worker’s ADLs, they utilize the subjective ophthalmological measurement tools of organ function for “visual acuity” and “visual field.”

Visual acuity is defined by the AMA Guides at page 603 as, “The ability to recognize small objects at high contrast, such as letters on a letter chart… This ability is important for ADL tasks such as reading.” Visual field is defined by the AMA Guides at page 603 as, “The ability to detect objects in the periphery of the visual environment…This ability is important for ADL tasks such as orientation and mobility.”

The strict AMA Guides rating for vision loss is calculated by combining measurements of both eyes as set forth in Section 12.4 at page 296 et seq. The WCAB explained the rating process as follows:

In cases such as this one, where applicant has impairment to both visual acuity and visual field, Chapter 12.4 is the proper method for rating the impairment of the vision system. (Id. at Chapter 12.4, p. 296.) Using this method, the evaluator must provide three measurements for visual acuity and three measurements for visual field. (Id. at p. 296.) For both acuity and visual, the evaluator measures the right eye, the left eye, and then binocular vision. (Id. at Table 12–3, p. 284, and Table 12–6 p. 289.) These measurements are put into a formula, which is weighted heavily toward the binocular measurement. (Id.) The formula multiplies the binocular measurement by three and then adds the monocular measurements of each individual eye. (Id.) This result is then averaged and further computed to determine the final whole person impairment of the visual system. (Id. at p. 296.)

The applicant’s case was complicated by the fact that he had vision loss in both eyes, but only the right eye’s vision impairment was due to industrial factors. Dr. Vishteh realized that it was his obligation to rate the WPI of Mr. Ortega’s right eye in accordance with the instructions of the AMA Guides. But he also knew that Labor Code § 4663 [LC 4663] mandates that he apportion permanent disability between industrial and non-industrial factors.

Therefore, Dr. Vishteh offered an “alternate” rating to compensate for apportionment to the non-industrial deterioration of the left eye. In his WPI calculation, Dr. Vishteh attempted to “back out” the non-industrial disability to the applicant’s left eye. Unfortunately, his “alternate” rating missed the mark as far as what is legally mandated in these types of cases.

The WCAB explained the fallacy behind the QME’s process as follows:

On the surface, it would appear as if this method properly deducted any non-industrial disability from applicant’s rating. However, because applicant is near blind in his industrial eye and because the eyes are intertwined and work together as a group, the cause of applicant’s binocular vision loss is industrial. It was error for the QME to adjust applicant's binocular measurements with fictitious values in rating his disability.

The WCAB held that the appropriate way to rate the visual system when there is loss of vision in the left eye due to non-industrial causes and no vision in the right eye due to industrial causes is as follows:

In order to determine what, if any, disability should be discounted from applicant’s left eye alone, we must calculate disability assigning a 20/20 vision score, or 100, to applicant’s monocular vision in the left eye only. We will assign the values as determined by the QME for applicant’s right eye and binocular vision, both of which are industrially injured. The disability is calculated as follows:

Functional Acuity Score (FAS) Calculation per table 12–3, p. 284 of AMA Guides
OU = 80 x 3 = 240
OD = 25
OS = 100
240+100+25 = 365 / 5 = FAS of 73

Functional Field Score (FFS) Calculation per table 12–6, p. 289 of AMA Guides
OU = 70 x 3 = 210
OD = 15
OS = 100
210+100+15 = 325 / 5 = FFS of 65

Functional Vision Score (FVS) Calculation per chapter 12.4a.1, p. 296 of AMA Guides
(FAS 73 x FFS 65) / 100 = FVS of 47 = 53% whole person impairment (WPI)”

The WPI of 53% was added to the 3% pain assessment for a total WPI of 56%. Once the WPI was determined, it was inserted into the rating string as follows:

12.03.00.00–56 - [1]62–380H - 68 = 70%

Evaluating physicians have a variety of complex and confusing tasks to perform. First, they must determine causation of injury. Later, when the worker becomes permanent and stationary, they must then determine causation of disability. These are two totally different types of causation, with two totally different types of analysis. However, physicians often miss this distinction and treat these different legal standards as identical, often causing their reports to not constitute substantial evidence.

Similarly, physicians are required to rate an injured worker’s WPI, but then later apportion PD between industrial and non-industrial factors. WPI is just one component of PD. In the instant case, the PQME attempted to illegally apportion PD using the WPI calculation. 

It is up to the lawyers in each case to note whether the physician has applied the correct legal standard, and, if not, to bring this to the evaluator’s attention [see Gay v. Workers’ Comp. Appeals Bd. (1979) 96 Cal. App. 3d 555, 158 Cal. Rptr. 137, 44 Cal Comp Cases 817 [44 CCC 817] (physicians in workers’ compensation matters must be educated by parties on correct legal standards of apportionment; here, failure of physician to discuss apportionment in terms of the proper legal standard was not actually his fault but that of the parties)].

Attorneys must be vigilant in checking the work of the evaluating physicians. They must alert them as to key legal issues, such as the distinction between WPI and PD. If an evaluating physician wishes to use an alternate rating method than that of the strict rating of the AMA Guides, the physician must follow a strict protocol for doing so. The physician must first offer a strict AMA Guides rating. Next, the physician must explain how and why that rating is not accurate. Finally, the physician must explain how and why an alternate rating within the four corners of the guides is more accurate. Failure of attorneys to educate the physicians as to these key legal standards may well result in adverse results at the trial level.

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