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According to the parties' stipulations, applicant sustained an admitted injury to his neck, low back, spine and sleep disturbance. A consultative rating of applicant's treating physician's report was requested. The disability evaluator was unable to rate the report because the treating physician incorrectly used the range of motion (ROM) method to rate applicant's WPI. The rater wrote that a supplemental report that complied with the AMA Guides was needed. The treating physician prepared a supplemental report which discussed the ROM versus the Diagnosis Related Estimates (DRE) method for rating applicant's WPI and explained why he used the ROM method for the cervical spine. However, he amended his earlier rating for the lumbar spine finding a DRE Lumbar Category II 8% impairment of the whole person. The combined impairment described by the treating physician totaled 24%.

The WCJ issued rating instructions for the lumbar and cervical spine. Instead of making specific reference to the AMA Guides, the WCJ instead stated "using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, consider the following" and then referred the disability evaluator to specific portions of the treating physician's reports and deposition where the treating physician addressed the AMA Guides.

The disability evaluator issued a rating and stated that no rating was scheduled or recommended for the disability described by the WCJ.

At the cross-examination of the disability evaluator, the WCJ amended the rating instructions to delete the phrase "using the AMA Guidesto the Evaluation of Permanent Impairment, Fifth Edition." Other than that, the instructions were not changed. The rater then issued a revised rating with a final permanent disability rating of 39%.

In addressing the appropriateness of the WCJ's rating instructions, the panel noted:

On June 3, 2010, the Appeals Board issued an en banc decision in Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, which discussed "the respective roles of the evaluating physician, the workers' compensation administrative law judge (WCJ), and the disability evaluation specialist (rater) in determining whole person impairment (WPI) under the AMA Guides." (75 Cal.Comp.Cases at 615.) Relevant to the issues here, the role of a rater is to issue recommendations based solely upon the WCJ's formal instructions, without considering the rater's own assessment whether the WCJ's WPI ratings are consistent with the AMA Guides.

The panel continued:

Once a WCJ has prepared formal rating instructions, a rater must recommend a permanent disability rating based strictly on those instructions. If a rater's recommended rating disregards or departs from the instructions, then the WCJ may direct the rater to re-rate in accordance with the instructions."(75 Cal.Comp.Cases at 624, emphasis in original.) On cross-examination, it is apparent that the WCJ's amended instructions striking the language requiring the rater to consider the AMA Guides, was due to the fact that the rater was offering an unsolicited opinion that the instructions were not consistent with the AMA Guides, in violation of the requirements set forth in Blackledge. Dr. Wassef's explanation for his WPI rating in his reports and deposition testimony is consistent with the requirements of the AMA Guides. Hence, the actual rating was based upon the AMA Guides. Defendant is not contending that Dr. Wassef s WPI assessment is contrary to the AMA Guides, but rather that the AMA Guides were not used. However, even though the WCJ struck the language in her instructions referring to the AMA Guides, Dr. Wassef did apply the Guides and the WCJ's rating instructions were based upon Dr. Wassef's opinion. Therefore, as the rater testified, his rating followed the WCJ's formal rating instructions, the ultimate rating reached in this case is correct.

Accordingly, though the WCJ did not technically determine the precise WPI provided for by the treating physician, it was permissible for him to adopt the sections of the treating physician's reports and deposition where the treating physician described the applicable WPI. Most significantly, the panel observed that it was specifically not the role of the rater to determine whether the WCJ's instructions were consistent with the AMA Guides. Like Blackledge, this case emphasizes the importance of maintaining the respective roles of the evaluating physician, WCJ, and the rater in arriving at an appropriate permanent disability rating.

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