On September 20, 2018, the Worker’s Compensation Hot Seat hosted by Bob Wilson welcomed Dr. Christopher Brigham and Alan Pierce, Esquire. It was a lively discussion of the implications of the American Medical Association Guides to Permanent Impairment, with particular emphasis on the Sixth Edition.
After dealing with a few minor technical issues, there was an informative discussion. Mr. Pierce focuses upon recent appellate decisions finding constitutional fault with the Sixth Edition impairment ratings. He focused first upon Protz v. Workers' Compensation Appeal Board (Derry Area School District) (June 2017), and the perception that the decision finds constitutional fault with the Guides. That may overstate the case, as the Protz courts (both the Pennsylvania Supreme Court and the Commonwealth Court found fault)(September 2015) are focused in their analysis not on the substance of the Sixth Edition, but upon the procedure by which they were administratively adopted. These analyses were of the delegation of state authority.
Mr. Pierce's references to recent Kansas decisions appeared more relevant to the complaint of diminution of benefits as a result of the shift in the impairment listings. Mr. Pierce enunciated multiple examples which illustrated significant decreases in impairment ratings for particular maladies or injuries. See Kansas Appeals Court Overturns 2013 Law, involving a calculation of permanent partial disability under the Guides, a dispute that for now remains ongoing. Whether the Kansas Supreme Court will alter the Appeals Court determinations remains to be seen. In the example of Protz, some may see the potential for the Kansas Court to affirm or reverse the Appeals Court, to alter the decision, maintain the analysis, or to take an entirely different approach.
Dr. Brigham noted that "impairment" is distinct from "disability," seemingly concurring with the theme of a recent post here regarding Fixing the Wrong Problem (September 2018). I was left with the impression that Mr. Pierce does not disagree with the distinction of "impairment" versus "disability." However, he noted that multiple jurisdictions have based their entitlement standards for permanent partial disability upon these impairment ratings. As such, those ratings are being applied, in his perspective, as an indemnity tool rather than a medical tool. Similarly, I did not sense that Dr. Brigham really disagreed with that application contention.
I was somewhat surprised that both speakers seemed willing to acquiesce in some legislative effort to make this inappropriate reliance more equitable or "fair." While both seem to accept that using impairment ratings to calculate disability benefits is inappropriate, both seemed willing to see legislatures continue to misuse the guides, and impairment ratings generally, but to also adopt methodologies to increase disability benefits. One suggestion is to multiply those impairment ratings by some legislatively selected rate (times two, or times one and one-half, etc). But, there seems consensus that impairment is not appropriate for determining disability. I struggle with how that becomes appropriate if the associated dollar values change. This seems incongruent.
According to the United Stated Department of Labor:
The American Medical Association (AMA) has periodically issued new editions of the Guides in order to keep pace with advances in medical treatment, diagnoses and philosophy. The stated goal of each new edition is to provide a fair and authoritative impairment guide based on the most recent medical advances.
The focus of the Guides is medical in nature, regarding both the science ("advances") and the art ("philosophy") of assigning some numerical value to the effects of injury or illness. That is not an imperative of medicine, and never has been. Medical science has never been dependent upon impairment specifically, nor inability or ability generally. Medical science is dependent upon and interested in diagnosis, treatment, and recovery. It is the legal system that has dragged the medical experts into the debates of maximum medical improvement and impairment ratings. See MMI and other Artificial Distinctions (May 2016).
Both speakers agreed that the Sixth Edition clearly sets forth an admonishment or warning that there are imperative reasons why these ratings should not be the sole foundation for the determination of permanent partial disability benefits. It appears that Dr. Brigham's position is that the medical process of the Sixth Edition is an improvement, and should therefore be respected. It is Mr. Pierce‘s position that the AMA’s knowledge that the legislative or regulatory bodies are inappropriately employing the Guides should render it incumbent upon the AMA to seek out those misusers, and actively advocate the mending of their ways.
Listening to the discussion, I was reminded of a chisel that I purchased some years ago. It was intended for mortar or concrete, and therefore had a very specific warning label that it "should not be used for cutting metal." That suggests the manufacturer might have suspected people were using their product to cut metal. Though I have owned it for years, no representative of the manufacturer has ever stopped by to evaluate my use of their tool or to suggest how I might use it better. It may similarly be asking too much to think that a publisher of a book is any more obligated to correct those who might misuse it (despite an explicit statement as to how to use, printed in the very book itself).
As a society, America has become accustomed to warning labels. As I have repeatedly discussed such warnings in college classes, the feedback I perceive supports that a fair volume of Americans has been over-warned. They are so accustomed to such warnings that labels and warnings are now often ignored. The cacophony of warnings has rendered us snow-blind. That effect, our collective conditioning to be less than impressed by warnings, results from the sheer volume of warnings and the processes that have led to them. Who is responsible for this cascade, this avalanche, of warnings and labels? Who is responsible for our collectively ignoring them now?
An example Dr. Brigham cited under the AMA Fifth, involves a cervical spine condition, that includes a presentation of symptoms and complaints in an upper extremity. He explained that under the accepted medical science, there is a surgery that is appropriate for the treatment of this malady, a treatment which is seen as generally effective in ameliorating its symptoms. Despite this, he explained, the Fifth Edition calls for a higher impairment rating post-surgical repair than it lists for the malady if left untreated by surgical intervention. He explains that results like this are counter-intuitive and inconsistent medically.
Dr. Brigham described a process that he has undertaken to study the variation in impairment rating, comparing the Fourth Edition to the Fifth, and to the Sixth. His conclusion is that the Fourth and Sixth are reasonably similar as regards a variety of studied maladies. However, the Sixth Edition, he notes, makes significant departures from the Fifth. In that regard, the question not asked was whether the various jurisdictions' reliance upon the AMA Guides Fifth Edition was unconstitutional because the ratings expressed therein increased payments to injured workers to the detriment of those jurisdictions' employers. If changes in benefits to a party's detriment alone can tip the constitutional scales, then does it matter which party?
In that vein, it might perhaps be difficult to quantify how a Sixth Edition retreat to the Fourth Edition impairment levels is a significant diminution in benefit entitlement. In fairness, acting as co-host of the Hot Seat, I was focused on The speaker's points and arguments. It is entirely possible that I misconstrued or misremembered this Fourth, Fifth, and Sixth discussion of distinctions and overall impacts. However, in the interest of stimulating conversation, my recollections are re-stated here.
Dr. Brigham similarly explained that the process for determining impairment ratings in prior editions was inconsistent in terms of the upper versus lower extremities. He explained that therefore the Sixth Edition was intended to provide methodological consistency, which may explain some of the deviations or differences in specific impairment listings. I inferred that advances in medical treatment and success rates might also have influenced those changes.
I was struck by the comments of both guests, from the standpoint of the application of expertise. I have written in the past regarding the insistence of laws and lawmakers to require non-medical opinions of medical experts. This almost certainly includes the opinions regarding maximum medical improvement (See MMI and other Artificial Distinctions (May 2016)), and following the seminar, is perhaps as applicable to the concept of impairment rating.
There appears to be some agreement from both perspectives that disability is a concept that includes more than simply medical assessment. While physicians may be best qualified to make determinations or form opinions regarding a patient’s ability to perform various movements functions or tasks, there seems agreement that physicians are equally unqualified to render functional or vocational opinions regarding how those physical abilities either qualify or disqualify a given individual from a particular employment, or other activity.
Mr. Pierce focused several times on the fairness of outcomes. He noted that a particular person's ability to find, secure, and maintain employment might be affected by more than "impairment." It seems his concerns are primarily that states have elected to use these impairment ratings as the singular, or at least primary, determining factor in calculating permanent partial disability benefits. That is likely inappropriate based upon the consensus that "impairment" and "disability" are not the same thing.
He was also focused on the admittedly difficult concept of "fair." The application of the impairment guides, without consideration of the impacts and contributions of vocational background, age, education, and more may produce inequitable, or "unfair" outcomes when they are applied to a spectrum of individuals suffering similar physical symptomatology. His comments in this regard were seemingly supportive of permanent partial disability benefits based upon a broader population of factors than merely impairment ratings, regardless of the standard or edition selected.
It occurs to me that the perceived strength of impairment ratings, guides, and statutes that rely upon them is that they bring consistency and simplicity to what might otherwise be difficult and perhaps fact-intensive decisions? I recall few cases I adjudicated that were involved with impairment rating disputes. That may suggest that their use as a tool creates consistency and increases simplicity. But, the same could be said for using a tape measure, and awarding a volume of weeks of permanent partial to each patient based upon their height or waist measurement. Either would be objective and replication would be simple. But, would height be a reasonable tool for measuring disability, even if it would be admittedly easier, objective, and consistent?
At the conclusion of the September 20, 2018, Hot Seat Seminar, host Bob Wilson opined that this was the best Hot Seat yet, despite the brief initial technical challenges. Having had several days to reflect upon the quality of discussion and the integrity of both guests' opinions and inquiries, I concur with that assessment. This discussion was enlightening, challenging, and helpful. Lucky for you, the entire program is available to be replayed at your convenience, just click above.
In the end, however, the discussion did not solve the disputes or remedy the respective issues associated with the Guides. But, the discussion did perhaps continue to help build dialogue and discussion, which are crucial to progress in workers' compensation. As we share perspectives and ideas, the result will be positive. Positive in the sense of us all being better informed and educated regarding the difficult concepts that underpin these systems. Armed with our understanding and respectful of differing views and perspectives, conversation can raise awareness, stimulate thought, and in the end may help the legislative leaders improve these systems for both employees and employers.
I encourage you to visit www.WCHotSeat.com and listen to the recording of the webinar. You can sign up for our next program, which will focus on the broader effects of workplace injury. In fact, you can sign up to be automatically registered for our future events. I find value in the perspective gained from the outstanding experts that have appeared on the programming, and thank them all for their contributions to my understanding and knowledge.
