The Effects of Davies
December 31, 1969
In the recent decision of Davies v. Alcan Rolled Products, the West Virginia Supreme Court of Appeals continued its recent trend of reviewing claims decisions based on the medical management guidelines in W. Va. C.S.R. § 85-20-1, et seq. (“Rule 20”). At issue in Davies was the calculation of permanent impairment for carpal tunnel syndrome (“CTS”) claims.
In W.Va. C.S.R. § 85-20-64.1, the Health Care Advisory Panel adopted ranges of permanent partial disability (“PPD”) for common injuries and diseases. In short, once an impairment level is determined using the range of motion model of the American Medical Association’s Guidelines to the Evaluation of Permanent Impairment, Fourth Edition, (“AMA Guides Fourth”), the examiner compares the impairment level to the ranges of permanent impairment provided in Rule 20. W.Va. C.S.R. § 85-20-64.5 provides than an injured worker who is entitled to a PPD award for CTS is eligible to receive a PPD award of 0%-6% in each affected hand. This provision was one of many “caps” on PPD awards provided for in Rule 20.
Mr. Davies was granted a 2% PPD award after an impairment estimate by Paul Bachwitt, M.D. Dr. Bachwitt found 6% whole person impairment under Table 16 of the AMA Guides Fourth. He then adjusted the rating to a 2% award under W.Va. C.S.R. § 85-20-64.5 based on his opinion that the 6% impairment rating under Table 16 constitutes a mild impairment.
Mr. Davies argued that if the claimant’s level of impairment is anything greater than 6%, the maximum PPD award allowable under W.Va. C.S.R. § 85-20-64.5, then it must be reduced to 6%. However, if the claimant’s level of impairment is 6% or below, then no adjustment is made.
The Court described Alcan’s argument for adjusting CTS impairments under § 85-20-64.5 based on subjective findings of mild (6%), moderate (12%) or severe (24%) CTS as prescribed in Table 16 of the AMA Guides Fourth. When applying § 85-20-64.5 to the Table 16 findings, examiners would assign 1-2% award for mild CTS, 3-4% award for moderate CTS, and 5-6% award for severe CTS.
The Supreme Court found that the interpretation supported by Davies would result in an outcome that was “absurd, unjust and unreasonable.” The net result was that any CTS with any residual subjective symptoms would entitle the claimant to 6% regardless if mild, moderate or severe. Despite the absurdity inherent in this interpretation, the Court did not like the employer’s interpretation either. The employer supported Dr. Bachwitt’s application of the AMA Guides Fourth’s Table 16 “stages” of mild, moderate and severe to the Rule 20 broad range of 0% - 6%. The Court simply found no support for this interpretation in the language of the rule.
As a result, the Court held that “W. Va. C.S.R. § 85-20-64.5 is in conflict with Table 16 of the AMA Guides Fourth. Due to this conflict, we now expressly hold that W. Va. C. S. R. § 85-20-64.5 is invalid and cannot be applied to carpal tunnel syndrome impairment ratings assessed under Table 16 of the [AMA Guides Fourth].”
The most important lesson from this decision is not the mistaken belief that the Court struck Rule 20.64.5 per se. The Court limited its decision only where Rule 20 is applied after the physician assesses impairment under Table 16 of the AMA Guides Fourth. The AMA Guides Fourth provides an alternate method for assessing impairment under Table 15 and the Court acknowledged this alternate method. Table 15 involves detailed measurements of sensory loss and motor deficit and allows assignment of impairments in 1% increments up to a total of 24% per hand. The Court stated in Footnote 2: “Because the Table 15 method was not used in calculating Mr. Davies’ impairment, we will limit our analysis in this opinion to Table 16.”
Because the use of Table 15 would not lead to the absurd or unsupported outcomes criticized by the Court, self-insured employers, third-party administrators, insurers and other parties responsible for arranging medical examinations should instruct the doctors to first use Table 15 of the AMA Guides Fourth and then apply the Rule 20 caps for their impairment ratings.