There has been a lot of excitement about the 6th Edition of the American Medical Association's Guide to Permanent Impairment. The story is not new. Rumblings about the implementation of the 6th Edition, without formal adoption, began with earlier editions. See Madrid v. St. Joseph Hospital, 928 P.2d 250 (NM 1996).
More recently, and specifically as regards the 6th Edition, Pennsylvania has struggled. That is discussed in some length in As Florida Waits (September 2015) and High Court Magnifies Protz (June 2017). The short story with Pennsylvania is that invalidating the methodology of adopting the AMA 6th impaired the entire IRE, or Impairment Rating Evaluation process.
In August 2018, the Kansas rendered Johnson v. US Foods, ___ P.3d __, Case No. 117,725 (KS 2018). Johnson may be reviewed by the Kansas Supreme Court, according to WorkCompCentral (pay subscription) on September 6, 2018. This was not about the adoption process for the AMA 6th Edition, but a due process indictment of the 6th Edition itself. The injured worker was assigned a 6% whole-person impairment under the 6th Edition, following injury and a spinal fusion. However, the same doctor who assigned that rating also opined that under the AMA 4th Edition the impairment "would have been 25%."
The injured worker complained that his "award" for the neck surgery was $14,810.80 under the law. The Court noted that had the legislature not adopted the 6th Edition, his "award" calculation "would have been nearly $47,000 greater," in the amount of $61,713.70. As such, the legislative adoption of the 6th Edition reduced the workers' recovery, in which it also determined he had a constitutionally protected property right.
A prominent physician involved in the publication of the AMA 6th Edition, Dr. Christopher Brigham, noted the Johnson decision at the WCI conference in August. WorkCompCentral reported on that in Sixth Edition Author Suggests Multiplier to Adjust Impairment Ratings. The doctor accepted that medical determinations of impairment could have the effect of changing the amount of compensation benefits provided.
He therefore suggested that "states can offset low impairment ratings with their own tweaks to the ratings." His suggestion, however, seems directed not to tweaking the ratings, but to tweaking the various statutory calculations that are dependent upon the ratings. He suggested that "If states think the ratings are too low, they can come up with a multiplier, say 1.4 or something." These states could thereby maintain the payment level to injured workers and nonetheless embrace the 6th Edition.
That was an interesting proposal. As I read the WorkCompCentral story suggesting a multiplier, I was reminded of a Dilbert cartoon from years ago. In it, Dilbert complains that he is being sent on a trip to teach Cobol (common business-oriented language), a computer program. Dilbert explains to his boss that his associate Wally is the expert in Cobol, but the boss notes "Wally was busy that day." Our pragmatist Dilbert suggests rescheduling the class, to which the boss replies "Okay does tomorrow work for you?" Exasperated, Dilbert exclaims "You're solving the wrong problem." And that punch line reverberates through my brain as regards impairment.
American workers' compensation struggles with the interaction between injury, impairment, and disability. To some degree, that struggle stems from the legal system's insistence that our medical brethren deliver opinions grounded not in science or medicine, but in law. An excellent example is maximum medical improvement (MMI), discussed in Artificial and Arbitrary Distinctions (May 2016). Doctors do not care about MMI. That determination is of no use in diagnosing or treating a medical condition or complaint. But, we in the legal field nonetheless compel doctors to make that MMI determination. The legal system insists that doctors spend time on decisions of no relevance to their prime function - the diagnosis and treatment of people.
Permanent Impairment is a similar issue, also discussed in Artificial and Arbitrary Distinctions (May 2016). The doctors did not become involved in impairment because it enhances diagnosis or treatment. The doctors became involved because legal processes demanded quantification, and with that requirement came the unsurprising realization that doctors are human, individual, and sometimes opinionated. Those who litigate, and who sought these ratings, quickly learned that different doctors could have different opinions on questions like impairment. Thus, having lured the medical profession into a chore of little interest to it, the legal system pushed for uniformity or at least a modicum of consistency.
Viola, the Guides to Permanent Impairment was born in the 1970s. Fifty years later, the guides are middle-aged. The imperfections and wrinkles have begun to show. Periodically over the years, the Guides have undergone surgery to adjust their conclusions. Some efforts have been cosmetic and others perhaps could be characterized as actually remedial. Unfortunately, each attempt to smooth them out in one spot has seemingly either caused or illuminated perceptions of wrinkles in another. The solution it seems is to keep doing plastic surgery on them.
Dr. Brigham's proposal at WCI is similar. He is essentially saying that the Guides 6th Edition is appropriate and scientific. He suggests that if the conclusions of the Guides are not to someone's liking in terms of benefit calculation, the solution is not to ignore the knowledge of pathology and healing expressed in the Guides but to change the effect of those ratings. In all, not a bad suggestion if I am correctly understanding his proposal (shameless plug, I hope to ask him more about this at the Workers' Compensation Hot Seat on September 20, 2018; register here). I will be curious also to hear what workers' compensation guru Alan Pierce has to say on that thought.
I would suggest, however, that much like Dilbert's boss, we are "SOLVING THE WRONG PROBLEM." The calculation of an impairment rating is not the problem. I would argue that even the statutory formula that converts that impairment to some measure of dollars is not the problem. The real problem is that both the legal and medical communities seem content to unquestioningly accept that somehow impairment is relevant. I would suggest, for the sake of discussion, that it is not.
As an exemplar, I would direct attention to the Florida Act, specifically Section 440.015:
It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer. (Emphasis added).
Simply stated, workers' compensation is about disability. Disability is defined by Webster's
a physical, mental, cognitive, or developmental condition that impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities and interactions
That is, limit on tasks or actions or participation. Workers' compensation systems have struggled with compensating injured workers. Statutes have defined and calculated benefits to compensate for either "impairment" or "disability." But, the overarching theme of workers' compensation is clearly disability. That is true also in the common law right to redress, which workers' compensation both precludes and replaces when it comes to workplace injuries.
A human body might suffer an injury by accident which results in the assignment of a low or high impairment rating. There are workers' compensation systems that would then provide compensation based on that impairment rating regardless of the existence of any disability. For example, a Florida worker with a 50% impairment would be entitled to 235 weeks of "impairment benefits" (it is a "sliding scale" entitlement, set forth in full at the bottom of this post) Section 440.15(3)(g), F.S.
That employee would be so entitled, even if the moment after reaching MMI the employee returned to work. That is, returned to work earning as much as pre-accident, or even earning more. This hypothetical employee would receive benefits, though she/he suffers no loss or either actual earnings or earning capacity. Those weeks of benefits would be to compensate the worker for the "impairment" that is published in a book, and related to the injury and care that has been rendered, and the ultimate outcome. But, nonetheless, the benefits would be based not on "disability" but "impairment."
So, if the impairment does not measure disability, why then is it used? Some will argue that impairment is appropriate because it is determined by the physician rather than the patient (a patient might say "I can't work" or "When I work this [symptom] occurs"). With the involvement of the doctor, and the reference to the published Guides, there may be those who believe that consistency and transparency are achieved, and from that limited definition conclude "fairness" results.
However, the opposite outcome is also possible. Could a patient be rated with a 1% or even 0% impairment and yet be utterly incapable of returning to work as a result of the work accident? Some would argue that is possible. The WorkCompCentral article points out that some maladies in fact result in an impairment of 0%. Thus a productive worker is injured on the job, medically treated, assigned a 0% impairment, and is utterly incapable of work. However, the impairment benefit model discussed above would provide no compensation for that complete disability, as it reacts only to the impairment.
In an impairment-driven calculation, a worker fully capable of work without loss of earnings might receive years of benefits while a worker with no hope of working, but a minimal impairment rating, might receive little or nothing.
The fallacy in the impairment guides is arguably not that they change over time. The weakness is not necessarily that those guides might be influenced in their formulation or application by human imperfection. The weakness, the "right problem" to fix is perhaps that workers' compensation is a medical and disability substitute for common law, for negligence, for tort damages. The key word is "disability." Certainly, one may successfully argue that disability is harder to prove, to disprove, and to evaluate. It may be less objective and more subjective. Determinations may be less consistent, and require more determinations of fact. But is the answer to those difficulties an abandonment of the disability concept?
Some will return time and again to the objectivity argument. Impairment guides, they will tell us, produce consistent financial results based upon an objective standard. Perhaps that argument wins the day. But, if it does then why not merely use a height standard? The statutes could award benefits not relative to the impairment rating, but to the patient's height. Four feet tall to four feet six inches receive "x" weeks per inch; for every inch between four feet six five feet, "y" weeks per inch, etc.
This is a preposterous proposal, and yet it is as transparent and objective as the impairment guides model. If the ultimate goals are objectivity, transparency, and predictability, the "tape measure" model is as efficient as any, and arguably as relevant as the impairment process. And, of course, there might be litigation over which tape measures were being used.
However, I would suggest that if there is perceived a problem in the current setting then perhaps Dilbert is right on point. Perhaps it makes more sense to return to the roots of workers' compensation and to statutorily define benefits based on disability. That is, based upon the economic impact that a particular injury and its effects have on a particular worker. Perhaps it would be less consistent and transparent, perhaps it would be more work, but it is true to the roots of workers' compensation, disability, and ability. The systems might just benefit from remembering workers' compensation's roots, what workers give up in the grand bargain, and why disability matters.
Section 440.15(3)(g):
(g) Notwithstanding paragraph (c), for accidents occurring on or after October 1, 2003, an employee’s entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier, and continues for the following periods:
1. Two weeks of benefits are to be paid to the employee for each percentage point of impairment from 1 percent up to and including 10 percent.
2. For each percentage point of impairment from 11 percent up to and including 15 percent, 3 weeks of benefits are to be paid.
3. For each percentage point of impairment from 16 percent up to and including 20 percent, 4 weeks of benefits are to be paid.
4. For each percentage point of impairment from 21 percent and higher, 6 weeks of benefits are to be paid.