In California Workers’ Compensation Law, there are many times that Injured Workers are asked to describe the nature and extent of their Pain. Injured Worker’s Pain Reporting is a vital part of the workers’ compensation system. This article will discuss the terminology used within workers’ compensation to describe the nature and extent of pain. Pain Reporting is essential to the Workers’ Compensation System. Pain Reporting can impact everything from the acceptance of the claim as being industrial, to the provision of benefits, and to the provision of medical care.
Pain Reporting can be subjective. People have different tolerance to pain. Pain can be different in nature. Pain can be dull. Pain can be sharp. Pain can be momentary. Pain can be unrelenting. Further, many times it is hard for an observer to understand an individual’s pain. Due to the subjectiveness and the difficulty in verification, Pain Reporting has an element of doubt as to its nature and extent with respect to Insurance Companies. All parties involved within the workers’ compensation, doctors, attorneys, and judges, will be assessing whether the Injured Worker’s Pain Reporting is valid for the purposes of handling the claim.
Injured Worker’s Pain Reporting validity impacts the very foundation of many workers’ compensation claims. Pain Reporting, for which Judges and Medical Evaluators view as credible, can lead to the provision of workers’ compensation benefits. This can include such items as the finding of injury being industrial to findings concerning the nature and extent of the injury. Pain Reporting, for which Judges and Medical Evaluators view as non-credible, can negatively impact one’s workers’ compensation claim. This can include finding that there was no valid claim to the diminishment of benefits.
Therefore, it is very important for Injured Workers to understand how the California Workers’ Compensation System describes and reports pain. Further, an Injured Worker’s ability to describe their pain in a manner that translates into the workers’ compensation system is of great benefit.
Injured Worker’s Pain Reporting: What Is Pain?
The definition of the Pain has changed within the California Workers’ Compensation Law.
Prior to 2004, there was a definition of Pain in the Labor Code Regulations and in the 1997 Permanent Disability Rating Schedule (PDRS.) In 2004, when the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, the definition of “pain” changed.
Even though the definition of the pain changed, the workers’ compensation system, in my opinion, is a hybrid system concerning the definition of pain. The AMA Guides is specifically designed to address the impact of impairments on Activities of Daily Living. It was not designed to assess disability for work injuries. See AMA Guides at Pages 4. As a result, there is a void as to how pain impacts one’s ability to perform work functions. As a result, medical reporting still, incorporate the old PDRS rating system in addressing pain and its relation to work activities.
Under the Old Workers’ Compensation Law, before the inception of the 2004 PDRS, the 1997 PDRS provided a definition of Pain. Pain was described within the guise of Subjective Factors of Disability. It was noted that :
“subjective residuals of an injury may include pain, numbness, weakness, tenderness, paresthesia, and sensitivity. Although their very nature precludes direct measurement, these factors may produce a degree of handicap beyond that which can be directly measured (objective residuals) and may be given consideration in the rating process. Pain is not always disabling. It becomes disabling when its degree affects function.”
Under the current Worker’s Compensation Law, the 2004 PDRS employs the AMA Guides to the Evaluation of Permanent Impairment 5th Edition. The AMA Guides quotes the International Association for the Study of Pain to provide a definition. “Pain is defined by the International Association for the Study of Pain as
“an unpleasant sensory and emotional experience associated with actual or potential tissue damage or described in terms of such damage.”
The AMA Guides, 5th Edition, goes further to note that “Pain is a plural concept with biological, psychological, and social components. Its perception is influenced by cognitive, behavioral, environmental, and cultural factors. At first glance, it seems at odds with scientific medicine because of the difficulty accounting for it with obvious pathophysiologic changes. Pain is subjective. Its presence cannot be readily validated or objectively measured. Physicians are confronted with ambiguity as they attempt to assess the severity and significance of chronic pain in their patients.” See AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, at Page 566.
As an Injured Worker, When will I be asked to describe my Pain?
There are essentially two arenas upon which an Injured Worker will be asked to describe the nature and extent of their pain. It is in the legal arena and in the medical arena.
- In the legal arena, you can be asked about the nature and extent of your pain under oath in a deposition. You can also be asked about the nature and extent of your pain under oath in a trial before a Workers’ Compensation Judge at the Workers’ Compensation Appeals Board.
- In the medical arena, you will be asked about the nature and extent of your pain during medical treatment and medical evaluations. While treating for your industrial injury, you will be asked by your treating physicians to describe your pain. You may be asked to fill out a pain chart. You may be asked to report your pain on an inventory. Further, during medical evaluations from Qualified Medical Evaluators, Agreed Medical Evaluators or Regular Physicians appointed by a Workers’ Compensation Judge, you will be asked questions about your pain.
Are there Levels of Pain?
The 1997 PDRS and the AMA Guides defines pain levels differently. The 1997 PDRS notes that
“Regulations define four degrees of subjective pain – minimal, slight, moderate and severe.”
In the 1997 PDRS, it noted that slight, moderate and severe pain reflect increasingly greater degrees of a handicap on work activity, and are ratable factors of disability. In the AMA Guides Pain is classified as mild, moderate, moderately severe, or severe. See AMA Guides at P. 571
What is Mild Pain?
Per the 1997 PDRS,
“ by definition, minimal (mild) pain is not disabling because it causes no handicap in the activity precipitating the pain.”
Per the AMA Guides, 5th Edition, definition of Mild Pain is “ Pain severity, based on a combination of intensity and frequency,is mild Individual’s pain is mildly aggravated by performing ADL; is able to perform them with few modifications Individual demonstrates no or only minimal emotional distress in response to his or her pain Individual is not receiving treatment for pain on a regular basis Pain-related limitations during physical examination are mild and appear appropriate; few pain behaviors (overt expressions of pain, distress, and suffering, such as moaning, limping, moving in a guarded fashion, facial grimacing) are observed during examination. See Page Table at 18-3.
What is Slight Pain?
Under the 1997 PDRS, slight pain is a
“pain that can be tolerated but causes some handicap (slight.)”
There is no slight pain under the AMA Guides for the Evaluation of Permanent Impairment, 5th Edition.
What is Moderate Pain?
In the 1997 PDRS, Moderate Pain is noted that “a marked (moderate[pain]) degree of handicap is directly related to the value for complete loss of function.” In other words, pain has an impact on performing a level of work activity.
Per the AMA Guides Table 18-3, Moderate Pain is “Pain severity, based on a combination of intensity and frequency, is moderate Individual has moderate difficulty managing ADL; must make significant modifications in order to perform them (eg, move to a ground floor apartment, buy a car with automatic transmission) Individual demonstrates mild to moderate affective distress in relation to his or her pain Individual requires ongoing medical monitoring and is taking medication much of the time
The individual demonstrates significant pain-related limitations on physical examination; relatively few pain behaviors appear during the examination, and they are of indeterminate appropriateness.”
What is Moderately Severe Pain?
Under the 1997 PDRS, there is no formal definition of moderately severe pain. Physicians sometimes, however, did describe some pain as moderate to severe.
Under Table 18-3 of the AMA Guides, Moderately Severe Pain is described as “Pain is present most of the time and may reach an intensity of 9-10/10 Individual can perform ADL only with substantial modifications; unable to perform many routine activities (eg, driving a car)
The individual demonstrates moderate to severe affective distress in relation to his or her pain Individual receives medication to control pain on a maintenance basis. On physical examination, the individual demonstrates severe pain related limitations that may make the examination difficult to perform and results difficult to interpret. A number of pain behaviors are observed during the examination, and they appear to be congruent with organ dysfunction.”
What is Severe Pain?
Per the 1997 PDRS, and the Rules of Policy and Procedure, ‘1. A severe pain would preclude the activity precipitating the pain.’ In other words, the pain is to the extent that the individual cannot participate in the activity, ie back is so painful that a person cannot do the heavy lifting.
Per the AMA Guides, Table 18-3, severe pain has a definition. It is that “Pain is essentially continuous, with intensity reaching 9-10/10 at its worst Individual must either get help from others for many ADL (eg, preparing food, dressing), modify them drastically (eg, stop bathing), or spend an inordinate amount of time accomplishing them (eg, 2 hours to get out of bed and dressed) Individual demonstrates severe affective distress in relation to his or her pain and communicates the perception that the pain is completely out of control Individual is receiving maximal pharmacologic support for his or her pain on an ongoing basis Physical examination is virtually impossible to perform because individual is intolerant of many examination maneuvers (eg, refuses to ambulate or to allow examiner to palpate symptomatic area); a significant number of pain behaviors are observed during the examination, and they appear to be congruent with organ dysfunction.”
What are the Frequencies of Pain?
Frequencies of Pain describes the period upon which an Injured Worker experiences the pain. Some pain may be short in duration, for example, 5 minutes, and other pain may be continuous, for example, there is unstoppable pain that is all of the time.
While the AMA Guides places the assessment within their definitions of Pain, the 1997 PDRS described it as a separate item. Per the 1997 PDRS, the frequency of pain is described in the following terms:
- Constant: 90-100% of the time
- Frequent mean: 75% of the time
- Intermittent: 50 % of the time
- Occasional: 25 % of the time
In the AMA Guides for the Evaluation of Permanent Impairment, 5th Edition, are there any special provisions?
The AMA Guides for the Evaluation of Permanent Impairment, 5th Edition, provides a special chapter for addressing pain. Chapter 18 provides for Pain-Related Impairments. It notes that “Organ and body system ratings of impairment should be used whenever they adequately capture the actual ADL deficits that individuals experience. However, the organ and body system impairment rating does not adequately address impairment in several situations. See AMA Guides at P. 57
In sum, organ and body systems have ranges and ordinary pain can be accounted for within the ranges. There are circumstances in which Pain is assessed as a separate add-on to an existing impairment.
When There Is Excess Pain in the Context of Verifiable Medical Conditions That Cause Pain?
Per the AMA Guides for Evaluation of Permanent Impairment, this can occur when there are well-established pain syndromes without significant, identifiable organ dysfunction to explain the pain.
How do Injured Workers harm their cases with respect to Pain Reporting?
They do so in two ways: over reporting and under reporting. They either over report their Pain at a level that is beyond belief. Commonly, they report their pain as a 10 out of 10 or they report pain to a body part for which pain is not possible–i.e. my hair hurts. Also, under reporting of pain can impact a case as well. For example, saying “it sort of hurts” is not helpful. This language diminishes the impact of the pain and does not provide a proper description.
What if I need advice?
If you would like a free consultation regarding your workers’ compensation claim, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.