Consultative Rating Relied On Over Summary Rating

An appeals court has explained the difference between the various alternative forms of rating. The court indicated that formal ratings will take precedence over earlier ratings.

The applicant had two specific injuries and one cumulative trauma that were all admitted injuries by the carrier. These injuries occurred in 1991 and involved the upper extremities and the right leg. The applicant acted in pro.per. A three-panel qualified medical examiner (QME) report was obtained in 1994. The applicant became represented and asked for a summary rating on the QME report. The summary rating was for 45.5 per cent. Neither party objected to this rating determination. The case was not settled on this rating and subsequently went to trial. The judge obtained a new rating. The rating based upon the judge’s instructions to the rater was 30.5 per cent. The applicant appealed.

The court of appeal indicated that prior to April 25, 1991 section 9738 allowed for the following types of ratings: (1) formal ratings; (2) pretrial evaluations; (3) informal ratings; (4) consultative evaluations: and (5) compromise and release evaluations. After April 25,1991 the law provides for (a) formal rating determinations, (b) summary rating determinations, © consultative rating determinations, and (d) informal rating determinations (section 10154).  The applicant wanted the higher rating of 45.5 percent which the court stated would have been a consultative rating because it was requested prior to the filing of a “Declaration of Readiness” to proceed. The court indicated that under former section 9758 this rating is not admissible. Consultative or summary ratings are not admissible in judicial proceedings.

Currently, except for “formal ratings” under section 10154, all other ratings are essentially informal and not admissible in judicial proceedings.  Instead, these informal ratings are for assistance in reaching or reviewing settlement agreements, not for resolving disputes or issues… in a trial.

The court indicated that summary, consultative, and informal ratings are to help the parties try and settle the matter. Only formal ratings are deemed to “constitute evidence” of the percentage of permanent disability (See section 10158). Once the matter goes to a contested trial all the prior ratings will become irrelevant and not be admissible or used as evidence in the proceedings.

The applicant further objected to the rating on the basis that the judge did not instruct the rater to use the work preclusions in the QME report, but to rate on the objective and subjective ratings of disability. The court found the rater performed his duty correctly and followed the judge’s instructions.

Case: Del Rio V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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