I.
The personal injury legal system is
dependent upon medicine. People obviously require care and treatment for
injuries; the dependence runs deeper however. When determining damages, the law
needs a methodology for predicting future medical costs, for assessing overall
function loss, and in general calculating appropriate damages. Despite the
law’s need for this, lawyers are not postured to deliver with any sense of
objectivity. Thus, the legal system turns to other professions to deliver
opinions upon which the legal system may rely.
Opinions are diverse. Anyone’s opinion on a topic may be influenced by education, experience, culture, and more. An old expression reminds “beauty is in the eye of the beholder,” with beauty an opinion. There is a subjectivity to the human experience, and we may each hold opinions that are based wholly upon fact, wholly upon emotion, or that are somewhere on the spectrum between.
There is the potential similarly that
“impairment is in the eye of the evaluator.” In these interactions between
medicine and the law, the “left brain”[i]
has therefore sought predictability, transparency, and science in the medical
opinions upon which the legal system relies. That has been particularly true in
the assessment of function, and delineation of medical significance.
In the 1950s, that drive led to
publication of various articles focused upon the assignment of “permanency,”[ii]
that is the residual effect of illness or injury following the conclusion of
remedial care.[iii]
The articles were compiled and edited in the 1960s, and published as the American Medical Association Guides to
Permanent Impairment (“Guides”).[iv]
These sought to bring uniformity to the medical/legal process through
definitions, standards, and framework. In the approximate half century since,
there have been multiple revisions,[v] and
the most recent printed version of the Guides
is the Sixth Edition. It may be the
last in this format. An excellent overview of this history is provided by Dr.
Christopher Brigham, Senior Contributing Editor to the Sixth Edition.[vi]
The New Year, 2021, will bring the next
iteration of the Guides, a fundamental
leap forward. The next-generation Guides
will be primarily digital rather than relying upon printing, consistent with
our society generally.[vii]
In the last 20 years, a generation has come of age innately synchronized with
digital information access.[viii]
Prior generations have striven to grasp and adapt to that technology[ix] for
which Generation Z is seemingly naturally predisposed.[x] There
has been significant challenge for each generation in the acceptance of varied
technology perspectives, and that divergence in the future remains likely in
the overall views of Guides modernization
and implementation.
While the discussion of print versus digital is pertinent, and format is an issue worthy of discussion, legal implications are likewise worthy of discussion. There remain deeper divisions regarding impairment, disability, calculation of benefits, and appropriate professional roles. Those have persisted through the various Guides editions. The division of perspective is periodically discussed, and the release of the new 2021 Guides seems an opportune time for revisiting these substantive issues generally, and in context of the new format. Despite the new format, the Guides remain true to the determination of medical impairment. Some in the legal audience, however, crave expansion of the involvement of the medical professional intervention into the broader task of defining or measuring disability.
The Preface to the AMA Guides, Sixth Edition, describes its “goal is to provide an
impairment rating guide that is authoritative, fair, and equitable[xi]
to all parties.”[xii]
The Guides recognizes the “the
concept of compensation for personal injuries and disabilities is hardly a
contemporary one,” [xiii]
noting that “social justice and compensation systems for injured parties have
been around since recorded history.” Today’s impairment rating challenges are
similarly not new. The Sixth Edition
also acknowledges “deficiencies”[xiv]
in prior editions including some suggested propensity for errors and a need for
greater consistency in impairment opinions. This, perhaps, illustrates the
“left-brain” focus on greater logic and predictability.
In Chapter 2, the Guides state they are “written by medical doctors for medical
doctors and others permitted to do impairment evaluations.”[xv]
Note that they are therefore not, by implication, written for lawyers, judges, or
juries. For that matter, they are not written for vocational or other experts.
Chapter 2 continues “this book is not likely to be used in the practice of
therapeutic medicine.”[xvi]
There is apparent conflict here, a book by and for doctors that is not focused
upon the practice of medicine.
To be clear, medicine is rarely focused
in its own right upon the topic of impairment. Medicine is generally focused instead
upon diagnosis, treatment, remediation, and palliation. It is the law that
desires such an disability construct, of which impairment has become a part. It
is the legal process that pulls the medical profession into discussions upon these
topics.
The Guides
are scientific, medical, parameters for physicians to use in measuring the
residual functional loss related to illness or injury. This conclusion likely has
minimal if any relevance in diagnosing pathology or planning ongoing medical
care. Doctors do not measure impairment to decide what condition is present in
a patient or how that might be remediated or palliated. It is a legal
construct.
The authors of the Guides note that the product of applying the Guides is essentially a “number used to measure the residual
deficit”[xvii]
in function, which is “then converted to a monetary award to the injured
party.”[xviii]
Thus, there is tacit recognition of the manner in which the Guides are used.
Any argument that the Guides are
misused should perhaps be tempered with that recognition.
The Guides
openly recognize that definitionally impairment does not equate to
disability:
“impairment (a significant deviation, loss, or loss
of use of any body structure or body function in an individual with a health
condition, disorder, or disease”;[xix]
“disability (activity limitations and or
participation restrictions in an individual with a health condition, disorder,
or disease.”[xx]
Thus, the two concepts are related, but
not synonymous: “the relationship between impairment and disability remains
both complex and difficult, if not impossible, to predict,”[xxi]
according to the Guides.
By its own delimitation, “the Guides are not intended to be used for
direct estimates of work participation restrictions.”[xxii]
The impairment conclusions of the Guides
“do not directly measure work participation restrictions.”[xxiii] For the determination of “disability,” the Guides conclude that “impairment rating
is one of several determinants of disablement,” the one “most amenable to
physician assessment.”[xxiv] Clearly, medicine recognizes the limit of its participation in disability analysis.
In the process of determining that
impairment, there is an admitted: “balancing [of] science and clinical
judgment.”[xxv]
And, there are a variety of factors that may influence that balance including
such factors as cultural differences.[xxvi]
The publication is titled “guides,” consistent with the general purpose
described. There is no medical or scientific representation of absolutism. The Guides are a tool providing structure
and definition for consistent, not absolute, determination of one element of
disability.
The determination of “disability” is
dependent upon the integration of impairment and other information into “contextual
information typically provided by non-physician sources regarding psychological,
social, vocational, and avocational issues.”[xxvii]
It is noteworthy that the Guides
specifically direct the legal system to the vocational expert for coalescence
of multi-factorial input and non-medical determination of this non-medical
conclusion.
II.
A headline recently proclaimed “Annual
Updates to AMA Impairment Guides Will Face Rough Waters Ahead.”[xxviii]
The premise is how the “American Medical Association embarks on an ambitious
program to update its rating guides every year.” The plan was reportedly discussed
in a recent educational program with advocates explaining how this new “digital
system” will replace the “hardback editions.” It is expected to facilitate revisions
and updating, assuring that the Guides
will thus facilitate “the use of the latest medical science and will produce
more equitable benefits for injured workers.” Notably, in its theme and definition, the Guides themselves produce no benefit determinations. There are,
however, jurisdictions that tie benefit determination to conclusions in various
impairment guides.
Those who worked to formulate the Guides, and to implement its use, see
the advantages of this digital technology leverage. As scientists, they
perceive a predictable evolution of medical science and envision a path to a
more accessible, responsive, and functional tool for facilitating the rendition
of impairment opinions. It is important that in the process of updating or
revising, the method of delivery or reference (digital) is essentially all that
is changing in 2021.
The news article documents criticisms of the digital plan. Commentators are said to oppose “states’ strict reliance on the” Guides. They contend that this reliance causes problems of a constitutional nature[xxix] and “fairness issues.”[xxx] One noted that an individual may “one day get ‘X’ dollars for an injury and then by the adoption of a” different impairment schedule another “person gets significantly less.” In this, there is a hint of a concern over equity,[xxxi] and a spirit of egalitarianism.[xxxii] There is also perhaps a suggestion of naiveté regarding the foundations of workers’ compensation. But, certainly, this complaint is one surrounding benefits, not one regarding impairments. That is, the cited criticism is not of the Guides, but of how states employ them.[xxxiii]
[T]he approach of tying the continuation of disability benefits to impairment rating protocols has been decried by many physicians and characterized as ‘unappealing, if not Orwellian’ in the commentary.
This article noted that, therefore, “some
worker advocates already are pushing back” against the plan to update the
venerated Guides more regularly. One
attorney was quoted saying “that states' strict reliance on the AMA impairment
rating guidelines, even with regular updates, will continue to cause problems.”
He states that such reliance “is a breeding ground . . . for constitutional issues and fairness issues.”[xxxvii]
Similarly, to the topic of impairment
noted by the AMA, the broader debate over appropriate methods for compensation of
loss “is hardly a contemporary one.” For years, the workers’ compensation
community has striven to focus on objectivity in that regard. Meriam Webster[xxxviii]
defines “objective” in terms of disease as “perceptible to persons other
than the affected individual.” There is an underlying sentiment that subjective
complaints of symptomatology, limitation, or pain defy measurement and
confirmation.[xxxix]
Therefore, statutes have evolved to variously require objective confirmation of
complaints, injury, and loss of function.
The Guides
are consistent with this objectivity ambition, and have evolved in parallel
with statutes. They are focused in large part upon science, measurement, and
objectivity. Where there is less potential for such measurability, and
throughout the Guides’ conclusions, committee
consensus[xl]
influences the determination of impairment. While this process is not
necessarily science in the strictest sense, it nonetheless brings perspective
and consistency for the individual assigning such a rating. When there is
science, it is employed. When there is less science, consensus and
collaboration at least bring consistency.
The news article notes comments made by Dr.
Mark Melhorn, co-chair of the AMA Guides'
Editorial Panel. He explains that the move to a digital format is “part of an
effort to bring more transparency to the [Guides]
process and make impairment ratings more uniform across the country.” He
explains that this is intended to render the assignment of impairment “less
subject to politics,” a reference perhaps to the legislative or regulatory
adoption of Guides, or perhaps to the
wider debate regarding how they are employed in the disability paradigm. The
new digital format is also a reaction to address the impact of “rapidly
changing medical science,” which supports evolution in thinking about
impairment.
The article also quotes Dave Sosnow, Vice
President for product management at the AMA. He expresses acknowledgment that the adoption of the new digital paradigm may face challenges in various states. His
comments are a reminder that there is no workers’ compensation system (singular)
in America, but at least 60 systems.[xli] Some
of those jurisdictions have adopted various specific editions of the AMA Guides. Others have adopted the Guides in a manner interpreted by courts
to specify an edition.[xlii]
Others, like Minnesota[xliii]
(regulatory) and Florida[xliv]
(statutory) have produced and published alternative guides.
III.
Though there is angst regarding the
transition to digital format Guides, and
though critics foresee potentials for legal challenges, there appears no viable
criticism expressed for the Guides themselves,
the science or consensus that underlies them, the delegation of such responsibility
to either physicians generally, or the overarching process of supervision and
responsibility of a private entity, the American Medical Association.
The consternation voiced is clearly not
related to the Guides, but to the
effect they influence through a jurisdiction’s statutory or regulatory action.
This effect is not independent, or intrinsic to the Guides, but is solely the result of government adoption decisions.
Those adoptions are perhaps founded on the relative ease of calculation more so
than on scientific determination of disability generally or the involved
process of such determination regarding a particular worker. Faced with the
challenge and complexity of determining disability, the legal system instead
opts to embrace impairment as a proxy, therefore.
There,
essentially is the rub. In compensation processes like personal injury and
workers’ compensation, there is a need to determine damages or benefits. There
is a potential for subjectivity to militate against uniformity and
predictability. In response, jurisdictions have elected to use impairment
ratings, which are specifically not measures of disability, as a benchmark for
nonetheless measuring disability. The tool is carefully comprised, yet
imperfect. The tool is subject to persistent improvement and revision. And, the
loudest criticism of the tool is that those who are misusing it are facilitating
inappropriate disability determinations through its misuse.[xlv]
Rather than criticizing those who misuse the tool, detractors seemingly focus
today on the processes for improving, revising, and distributing the tool.
Some will conclude that the criticism may therefore seem misdirected.
The appropriate discussion might instead
focus on how this tool is effectuated in the determination of benefits or
damages. At the outset, the determination of damages is an intriguing challenge.
Impairment, as defined and discussed above, does not equate to disability. Some
would argue that impairment does not necessarily approximate disability.
For example, if a judge fell at work and injured her shoulder, underwent a
rotator cuff repair, and had a residual range of motion deficit, the AMA Guides would likely delineate an
impairment. But, that judge might very well be able to nevertheless return to
work full duty with no decrease in earnings, perhaps not even in necessary or
applicable function. Stated simply, the anatomical deficit might well coexist with
a complete absence of vocational or income-earning deficit. Impairment of the
body does not necessarily correlate to loss of earnings or earning capacity.
Thus, a person might suffer a significant
diminution of body function with minimal or no vocational impact. Conversely, a
person might suffer significant vocational or functional impact from a
relatively minor bodily effect. Knowing that the impairment is not equivalent
to a disability, legislators have elected in various instances to equate
impairment with disability and thus with benefits or damages, impairment as a proxy
for disability. The consumption of medical care (“utilization”) has also been
suggested as a proxy for disability determinations.[xlvi]
Possibly, that implementation decision is worthy of reconsideration.
That is where the debate appropriately belongs.
Should workers’ compensation provide benefits to individuals who suffer no
diminution in earning capacity from an injury? States have struggled with this
historically. At times, there has been criticism based on a perception of a
lack of objectivity afforded by various methods of measuring disability. Is the
proxy analysis an appropriate measure in a general context? More pertinent
here, is the impairment proxy appropriate despite the explicit warnings of the Guides in that regard?
IV.
Florida experimented with “disability” in
the 1970s through 1990s, instituting a
“wage loss” benefit for permanent partial disability. To prove entitlement to
wage loss benefits, the injured worker had to search for work within her/his medical
restrictions or limitations. The “work search” was the foundational proof of a
disability – the inability to earn similarly, or earn at all, post-recovery
from injury.
Wage loss trials would focus upon the
Claimant’s evidence of her/his efforts in visiting businesses and completing unsuccessful
applications. The defense evidence tended to be vocational experts who
testified to the local availability of work within the assigned activity
restrictions. The judge was often faced with conflicting evidence that might be
all-or-nothing for one side of the debate, or in some instances might be parsed
into various specific time periods for which benefits were or were not appropriately
payable. The process was litigation-intensive, dependent upon expert vocational
testimony, and therefore required time and financial resources. Admittedly, the
results of the process were imperfect.
There was some perception that “wage
loss” was highly subjective. Either through appearance, demeanor, or through a selection of prospective employers to visit, a worker might essentially
sabotage the chances of obtaining employment. Around the turn of the century,
some of those trials were further complicated by prospective employers who
directed all potential applicants solitarily to online application programs.
Even those with no function issues often found those application processes
ineffective and unavailing. One vocational expert testified at trial that such
a digital application process was essentially a “black hole,” and that no valid
conclusion of employability could be based upon response or lack of response
from such an online effort.
This loss-of-earning concept was
recently in the news in Texas. WorkCompCentral[xlvii]
reported that an insurance company sued the Texas Division of Workers’
Compensation regarding its rules related to work-search evidence. There were
allegations of work searches conducted by “the workers’ spouse or attorney,” of
providing lists or copies of job advertisements with “little proof they
actually applied for jobs,” and of manual-labor workers . . . citing
advertisements for long-shot positions such as ‘airline pilot’ and ‘corporate
attorney based in Tokyo.’” The
litigation there supports that differing perceptions of work search foundations
and efficacy remain.
The converse “impairment equals
disability” proxy models replace that kind of fact-intensive analysis with a
simple equation that converts an impairment rating to some benefit entitlement level
without any need for proof of actual disability or loss of earnings. There,
impairment seemingly implies or presumes disability. This may be directly at
odds with the AMA precept that impairment and disability are not synonyms. In such
an impairment jurisdiction, that judge who returned to work full-time and full-duty
with no loss of income would nevertheless be entitled under the law to some
measure of benefits. This paradigm is obviously less time-consuming and
litigation-intensive. This is the model to which Florida evolved in the early
1990s. Admittedly, the results of this process are similarly imperfect.
The imperfections in any system will be
highlighted by critics. A worker being provided thousands of dollars for
“impairment” despite no loss of earnings may seem inappropriate to some. A
system that requires complex proof of actual earning loss, and potentially
years of litigation may similarly seem antithetical to the theme of workers’
compensation being “self-executing.”[xlviii]
So far, in about 110 years of workers’
compensation, jurisdictions have thus found, enacted, and refined two largely
imperfect methods for compensating for the residual effect of injury. Each method
may compensate some to no end and inappropriately strand others, with similar
illogic. There is the potential for untoward outcomes in either paradigm. Of
course, there is the converse potential for either method to also work
appropriately in a given situation. Perhaps such “outlier” results are
intrinsic and would occur regardless of the adopted methodology? With so many
systems searching over a hundred years, it is possible that no perfect
methodology exists. Despite this potential, the outlier results perhaps drive
the ongoing discussions and debates.
Thus, it is likely the systemic,
statutory, and regulatory, flaws that drive debate rather than the Guides. The recent news regarding the
AMA plans for the Guides focuses no
criticism of the methodology, organization, or science of the publication.
Despite that, the Guides are
nonetheless criticized because of the misuse to which various jurisdictions put
the tool.
V.
The Constitutional challenges alluded to
in the criticism bear mentioning.[xlix]
There have been various challenges to the adoption of the AMA Guides by jurisdictions. The most covered in recent news was the
decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).[l]
It is a subject that has received ample discussion.[li] The
critical point of the litigation was Pennsylvania’s 1996 adoption of the “most
recent edition” of the AMA Guides, at
that time the AMA Guides, Fourth Edition.
Pennsylvania is a jurisdiction that ties permanent disability compensation entitlement
to the impairment rating. Thus, the published rating for a particular malady
may have a direct role in determining the compensation paid to a worker.
Equivalently, any amendment to the impairment rating may enhance or diminish
the compensation paid for the residual effect of a particular malady or
condition.
In adopting the AMA Guides, Fourth Edition, the Pennsylvania legislature did not designate the edition by name. Instead, it
adopted “the most recent edition of the American Medical Association Guides to the Evaluation of Permanent
Impairment.”[lii]
At the time, the “most recent” was the Fourth
Edition. However, that indirect language was thereafter interpreted to
effectively adopt later editions upon their publication by the American Medical
Association, without further state action. The Pennsylvania Supreme Court
concluded that this legislative language constituted an inappropriate
delegation of state authority to the AMA.
The court was not critical of the state
adopting the Guides. The state, it
appears, may validly adopt a standard created by a private organization, or an
individual. The court was critical, however, of the law essentially adopting
standards that did not exist at the time of adoption (future "most recent"). The immediate effect of
the “most recent” language was the adoption of the Fourth Edition. However, that
language thereafter effectively adopted amendments to impairment ratings in
both the Fifth and Sixth Editions. Those editions, and their
impacts created by state law reference thereto, were not evaluated by the
Pennsylvania legislature.
The court thus found fault with the
effective “delegation” of authority to the Guides
and the AMA. The intermediate appellate court concluded that the only
appropriate reconciliation was enforcement of the Guides in effect when the legislative action was taken, the Fourth Edition. The Pennsylvania Supreme
Court, however, proceeded further and explicitly struck the AMA Guides from the law. The
Pennsylvania legislature reacted the next session, adopting the Sixth Edition specifically.[liii]
This is illustrative, at least, of the manner in which debates may be
time-consuming judicially and legislatively.
This is probably the focus of the recent
webinar upon which WorkCompCentral reported. The digital version of the AMA Guides represents an evolution from
the “edition”-based process. It is practical to anticipate the potential for
revisions and changes to the Guides
on an annual basis. The Protz
analysis suggests that legislative action could thus be required on a periodic
basis, an official adoption[liv]
of any such changes.
The Protz
decision is not the only perspective on such adoption. The New Mexico Supreme
Court reached a contrary conclusion in 1996, Madrid v. St. Joseph’s Medical Center.[lv]
Its decision provides an overview of the manner in which impairment ratings
determine benefit entitlement under that law, which it characterizes as a
“complex evaluation scheme.” There is tacit recognition that the
evaluation and compensation of disability is challenging. The court noted that in New Mexico the
impairment rating is a factor, but “not the sole determinative factor” in
determining benefits. The court specifically acknowledged the potential for
revisions or updates.
The Madrid
court noted that “new developments in medical science relevant to evaluating
impairments demand periodic modifications of the standard adopted.” It thus
found a revision and updating process to be positive and desirable. It concluded that “periodic revisions of the
standard will not transform an otherwise constitutional and non-delegatory
statutory provision into an unconstitutional delegation.” In other words, the court
concedes the necessity of following science’s evolution and concludes that
these revisions will not render an adoption unconstitutional. The Madrid opinion offers an explanation of
various other states’ adoption of similar outside standards also found to pass
constitutional inquiry.
One might discuss various examples of
legislative strain. In a nutshell, jurisdiction’s legislatures are typically
confronted annually by a multitude of bills and other challenges. Issues such
as budget, public safety, and health may consume that branch’s time and
attention, predominantly in part-time legislative processes. It may be
ambitious to expect a periodic review of potentially minor amendments to either
process or conclusion of impairment ratings under any standard, including the AMA Guides. Thus, if the Protz analysis controls (Pennsylvania)
or influences (elsewhere), legislative adoption of the AMA Guides digital product may be frustrated. Conversely, if the Madrid analysis is instead the standard,
adoption may be more straightforward. But, it is imperative to recognize this
is no fault of any guides (the tool), but the manner in which the government has
chosen to utilize them.[lvi]
VI.
Practical considerations exist for
medical care providers and attorneys. One might utilize the digital version for
all of its strengths (searchable, accessible, and citable). A physician might
more efficiently locate the applicable section for a particular malady, even
copy and paste such a reference for substantiation in a report. Adding to that
conclusion and reference an opinion regarding any “edition” distinction might
reassure the worker (e.g., “having reviewed also the AMA Guides Fourth Edition, I conclude the appropriate rating would
be the same using that reference”). Thus, an expert might avail her/himself of
the updates to process and function; the use of the new tool might be efficient
and expeditious. With explanation, the expert might clarify that such
efficiency has produced no different result or conclusion than a more
time-consuming review of a printed version would have.
For legal professionals, the
practicality may be in communication. When a physician is engaged for purposes
including assignment of an impairment rating, the legal or claims professional
should appropriately frame that question (e.g., “Please render an opinion of
impairment using the ____ edition of the AMA
Guides, and note any distinction or difference if the _____ edition were
used instead”). This would alert the medical professional to the express
question. Further, any subsequent legal decision regarding the appropriateness
of a particular guide edition might not require re-evaluation for the calculation
of benefits.
For legislative and regulatory
authorities, it may be preferable to acknowledge the disconnect between
impairment and disability; and to strive for calculations of benefits that are not
dependent upon impairment conclusions. Failing that “pure” outcome, there may yet
be solace in the Madrid analysis. If
impairment is to play a role in benefit calculation, it may be preferable to avoid
formulaic approaches that relate impairment to benefit in absolute terms.
Instead, a methodology like New Mexico’s that affords impairment determinations some
role in a larger analysis may be more amenable to Guides that are periodically or even continually revised.
Legislative acknowledgment and appreciation of the distinctions between
disability and impairment would be significant and compelling. Recognition of
the AMA Guides’ own cautions
regarding their purpose and use would be of benefit.
WorkCompCentral quoted a Rand
Corporation economist who appeared on the panel discussion. He suggested that
states may adjust their benefit calculations through alteration of the formula
rather than through ignoring the medical science. If a particular injury has
some perceived value associated with residual effects, states could amend their
statutory “adjustment factors” to result in that monetary value even if the
impairment rating increases or decreases. The existence of such “factors” in
various statutes is an acknowledgment that impairment does not equal
disability. The effect of the Rand economist proposal might be the
acknowledgment that statutory disability benefit determinations are largely
random and arbitrary.
Those states have decided to place a
value on particular injuries, arbitrarily or not. Perhaps if that is the
desired outcome, it makes sense to do so without any reference to impairment.
What justification is there for involving or implicating impairments if the
outcome benefit level is determined otherwise? To establish some value, and
then “back in” to a formula intended to achieve that value seems to involve the
concept of impairment inappropriately. Possibly the Guides are being used in those contexts to lend credence to
predetermined and arbitrary conclusions.
The Rand economist concluded that “if
states really believe in the scientific foundation, you might argue that would
be a case for doing nothing when the Guides
update.” The logic of that is patent, despite the science being consensus of
belief[lvii]
in some instances as opposed to the scientific method.[lviii]
He reportedly continued, “if states have adjustment factors in place, though,
they'll probably want to update those and change their disability rating
formulas every time the Guides are
updated.” That is, change the formula to ignore the scientific or consensus conclusions
as to increased or decreased impairment and realign that formula to nonetheless
still produce whatever arbitrary benefit level was previously established, but
through revised math.
VII.
It is worthwhile to reiterate that 100
years of history, effort, compromise, and good intentions have yet to deliver a
perfect process or system for benefit calculation. Workers’ compensation, at
its root, is a social safety net intended to place the cost of workplace injury
upon the industry in which an accident was suffered.[lix]
It is an admirable construct that needs and relies upon science. However, it
is an endeavor that may produce untoward anecdotal outcomes when applied in a
formulaic manner. While formulae may provide “predictability,” and broad
analyses may provide perceived “fairness,” each of those may periodically result
in outlier anecdotal results that are unacceptable to a given perspective. Similar
criticism has been leveled periodically at various social safety net systems.
There is room in the community for
serious discussion of the underlying principles of workers’ compensation. The
delivery of benefits is currently being discussed as regards the AMA Guides, a microcosm (or is it a
microcosm?). But, the equation of impairment to disability seems lost in the
discussion. The challenges of legislative delegation (process) may take
precedence over the more fundamental concerns. There is room in this discussion
for injured workers, employers, economists, physicians, vocational experts, and
lawyers. But, the focus must remain on system transparency and effectiveness, not
the individual interests of the particular groups from which those professionals
come.
[i] Shmerling,
Robert. “Right brain/left brain, right?” Harvard
Health Blog, August 25, 2017 (“left-brained people tend to be more quantitative and analytical.”); https://www.health.harvard.edu/blog/right-brainleft-brain-right-2017082512222, last visited December 1, 2020.
[ii] Guides to the Evaluation of Permanent
Impairment. 6th ed., American Medical Association; 2008, at page 2.
[iii] Guides to the Evaluation of Permanent
Impairment, Supra, note 2, at
page 20, Table 2-1 (A Fundamental Principle of the Guides states: “permanent
impairment may be rated . . . only after Maximum Medical Improvement status is
certified.”
[iv] See, Langham, David. “As Florida Waits,
Commonwealth Court Holds Pennsylvania Statute Unconstitutional,” Florida Workers’ Compensation Adjudication Blog,
September 20, 2015; https://flojcc.blogspot.com/2015/09/as-florida-waits-commonwealth-court.html, last visited December 1, 2020.
[v] See, “AMA Guides® to the Evaluation of Permanent
Impairment: an overview,” American
Medical Association, undated, https://www.ama-assn.org/delivering-care/ama-guides/ama-guides-evaluation-permanent-impairment-overview, last visited December 1, 2020, (1st ed. 1971; 2nd ed. 1984; 3rd
ed. 1988; 3rd ed. Revised. 1990; 4th ed. 1993; 5th ed. 2000; 6th ed.
2008).
[vi] Brigham,
Christopher. “AMA Guides - Sixth Edition: Evolving Concepts, Challenges and
Opportunities,” Impairment Resources,
https://www.6thedition.com/training/sixtheditionsyllabus2008-01-23.pdf, last visited December 1, 2020.
[vii] Dewar, James. “The Information Age and the
Printing Press,” Rand Corporation, https://www.rand.org/pubs/papers/P8014.html, last visited
December 1, 2020.
[viii] McHenry, Giulia. “Evolving Technologies Change the Nature of Internet Use,” National Telecommunications and Information
Administration Blog, United States Department of Commerce, (undated), https://www.ntia.doc.gov/blog/2016/evolving-technologies-change-nature-internet-use, last visited
December 1, 2020.
(“Technological changes are driving a profound shift in how Americans use the Internet”).
[ix] Vogels, Emily. “Millennials stand out for their technology use, but older generations also embrace digital life,” Pew Research Center, September 9, 2019, https://www.pewresearch.org/fact-tank/2019/09/09/us-generations-technology-use/, last visited December 1, 2020.
[x] Id.
[xi] Equity,
like beauty, may be in the eye of the beholder. See generally, infra notes 31-32.
[xii] Guides to the Evaluation of Permanent
Impairment, Supra, note 2, at
iii.
[xiii] Id. At 1.
[xiv] Id. At 2.
[xv] Id. At 19.
[xvi] Id.
[xvii] Id. At 20 (Section 2.1a).
[xviii] Id.
[xix] Id. At 5 (Section 1.3d).
[xx] Id.
[xxi] Id. At 6 (Section 1.3d).
[xxii] Id.
[xxiii] Id. At 5 (Section 1.3d)(“most physicians
are not trained in assessing the full array of human functional activities and
participations that are required for comprehensive disability determinations”).
[xxiv] Id. At 6 (Section 1.3d).
[xxv] Id. At 8 (Section 1.5).
[xxvi] Id. At 27 (Section 2.5g).
[xxvii] Guides to the Evaluation of Permanent
Impairment, Supra, note 2.
[xxviii] Rabb, William. “Annual Updates to AMA
Impairment Guides Will Face Rough Waters Ahead,” WorkCompCentral.com, November 16, 2020, https://www.workcompcentral.com/news/article/id/1e553cbc7c396cc77637144947b01ec3a5d1058f, last visited
December 1, 2020.
[xxix] These
references may be to foundations such as equal protection and the parity of
benefits to similarly situated recipients; similarly, these references may be
to the challenges related to legislative delegation and constitutional
constraint.
[xxx] The
connotation suggesting that outcomes may remain within constitutional or legal
boundaries and yet affect outcomes that are nonetheless perceived as unfair or
inequitable.
[xxxi] Equity is defined: “justice according to natural law or right - specifically : freedom from bias or favoritism.” Merriam Webster Online, https://www.merriam-webster.com/dictionary/equity, last visited December 1, 2020.
[xxxii] One court noted that “Equity is a two way street and he who invokes it must have a good measure of it on his side.” Longino v. Longino, 67 So. 2d 203, 205 (Fla. 1953).
[xxxiii] One
might perhaps envision a neophyte on the roadside, her/his vehicle with a flat
tire, persistently banging on the lug nuts of the wheel with the wooden handle
of a hammer while complaining bitterly that the tool itself is inefficient or
ineffective. Is this a failure of the tool or the user?
[xxxiv] Kobayashi, Robin. “Workers’ Compensation in a Medically Overtreated Society,” LexisNexis, November 12, 2011, https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/workers-compensation-in-a-medically-overtreated-society, last visited December 28, 2020.
[xxxv] Id.
[xxxvi] Duffey v. Workers’ Comp. Appeal Bd. (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017).
[xxxvii] Notably,
it appears as likely that such a revision might result in a subsequent worker
receiving more compensation than was likely under an earlier edition. There is
no mention of inequity in that. Similarly, there has been little if any discussion
of how such an increase in liability on the employer side of the equation might
similarly be discerned as inequitable.
[xxxviii] Merriam Webster Online. https://www.merriam-webster.com/dictionary/objective, last visited December 1, 2020.
[xxxix]
The AMA Guides devotes Chapter
3 to “Pain-Related Impairments.” Supra,
note 9, page 31.
[xl] Supra, note 9, page 19 (“a percentage
based on a consensus of opinion from multidisciplinary medical specialties and
cumulative experience.”)
[xli] Each
state, the District of Columbia, Puerto Rico, U.S. Virgin Islands, Guam,
Federal Workers’ Compensation, Federal Employers Liability Act, Longshore and
Harbor Workers Act, and more.
[xlii] Some adoptions are specific, e.g. Ala. Admin.
Code r. 480-5-5-.35 (“The American Medical Association Guides to the Evaluation
Of Permanent Impairment, Fourth Edition, shall be the recommended guide
used.”); Other adoptions are general, e.g. Ariz. Admin. Code § 23-1044,
R20-5-113 (“as published by the most recent edition of the American Medical
Association in Guides”). See “AMA
Guides, State-by-State Chart,” Lexis
Nexis, June 2, 2010, https://www.lexisnexis.com/legalnewsroom/cfs-file.ashx/__key/communityserver-components-sitefiles/Documents-WCLC+Documents/AMA-State-by-State-Chart-2010.pdf, last visited
December 1, 2020. See also
“State-by-State Use of AMA Guides,” LexisNexis,
July 23, 2019, https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/state-by-state-use-of-ama-guides, last visited
December 28, 2020.
[xliii] Minnesota Rules, part 5223.0300, online, https://www.revisor.mn.gov/rules/5223.0300/, last visited December 1, 2020.
[xliv] Section
440.15(3)(b), Fla. Stat.
[xlv]
See Supra, note 33.
[xlvi] “Health-Care Utilization as a Proxy in Disability Determination,” The National Academies Press (2018), https://www.nap.edu/catalog/24969/health-care-utilization-as-a-proxy-in-disability-determination#:~:text=Health%20Care%20Utilization%20as%20a,gainful%20activity%2C%20regardless%20of%20age%2C, last visited December 28, 2020.
[xlvii] Rabb,
William. “Court Blocks DWC’s Work Search Rules for Supplemental Benefits,” WorkCompCentral, December 4, 2020, https://www.workcompcentral.com/news/article/id/1eb54de5a4d3dea5cd9799f0385ac7600f16e59c, last
visited December 9, 2020.
[xlviii] Section
440.015, Fla. Stat.
[xlix] Supra, note 2.
[l] Protz v. W.C.A.B. (Derry Area School Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015); Rev’d, 161 A. 3d 827 (Pa. 2017).
[li] Langham, David. As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional, Florida Workers’ Compensation Adjudication Blog, September 20, 2015; https://flojcc.blogspot.com/2015/09/as-florida-waits-commonwealth-court.html, last visited December 1, 2020. See also, Langham, David, Pennsylvania High Court Magnifies Protz, Florida Workers’ Compensation Adjudication Blog, June 21, 2017; https://flojcc.blogspot.com/2017/06/pennsylvania-high-court-magnifies-protz.html, last visited December 1, 2020. An updated LexisNexis chart is accessible through a link in an unattributed article “State-by-State Use of AMA Guides, July 2019, https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/state-by-state-use-of-ama-guides, last visited December 28, 2020.[lii] 1
Pa. C.S.
[liii] Beck,
Justin. “An October Surprise: Pennsylvania Adopts Sixth Edition of AMA Guides,
Restores Impairment Rating Evaluations,” https://www.tthlaw.com/wp-content/uploads/2018/10/Read-More-An-October-Surprise.pdf, last visited December 28, 2020.
[liv] “To accept formally and put into effect,” Merriam Webster Online, https://www.merriam-webster.com/dictionary/adopt, last visited December 1, 2020.
[lv] Madrid v. St. Joseph Medical
Center,
928 P.2d 250 (NM 1996); https://www.leagle.com/decision/19961178928p2d25011178, last visited
December 1, 2020.
[lvi] See Supra, note 33.[lvii] Some are critical of consensus of thought in this context. See Crichton, Michael, Goodreads, “the work of science has nothing whatever to do with consensus” https://www.goodreads.com/quotes/344539-i-want-to-pause-here-and-talk-about-this-notion, last visited December 1, 2020.
[lviii] Scientific
method, Britannica Encyclopedia online, https://www.britannica.com/science/scientific-method,last visited December 1, 2020.
[lix] Port Everglades Terminal Co. v. Canty, 120 So. 2d 596, 602 (Fla. 1960).