The Colorado Court of Appeals rendered an interesting decision in March 2020: Kerry Fisher, v. Industrial Claim Appeals Office of the State of Colorado and State of Colorado Department of Corrections.
The central issue focused on the assignment of an impairment rating by the treating physician. The Court recognized that the American Medical Association Guides to the Evaluation of Permanent Impairment have been in use for years, and that reference to various editions of those Guides may result in various impairment ratings for the same malady and complaints. It is somewhat intriguing as consistency is one of the overarching goals of the Guides.
The Court explained that the inconsistencies between various Editions result from “emphasis of certain areas," and as "a reflection of the latest consensus in medical science within its subject matter.” The Court noted that the Colorado statute "mentions" the Third Edition, which was published in 1988. Colorado's court concluded that the statute states that "impairment rating guidelines ... shall be based on the revised third edition of the [Guides] in effect as of July 1, 1991" (when the statute was enacted).
This form of adoptive language is a contrast to the language used in states such as Pennsylvania and New Mexico. See Pennsylvania High Court Magnifies Protz (June 2017) and As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional (September 2015) and Will the New Guides be Lost in Translation (January 2021). States continue to struggle with the use of impairment guides while ignoring the fundamental issue.
At the core of this issue is an admission that impairment and disability are two distinct constructs. Impairment is a measure of bodily system function. It is focused on what an injury, or the residual of an injury, affects in terms of bodily function loss. That is distinct from whether a person with such an impairment can or cannot perform a (or any) occupation or job. I recently sat with two workers' compensation scholars for a discussion of comparative law in Florida, California, and Texas. The engaging conversation included highlights of how our three largest states have had different approaches to such Guides. There are intriguing differences in state approaches.
Colorado's issue in Fisher Focused upon the legislature's intention when it adopted those Third Edition requirements (or "mentions" them as the Court phrased it). The statute says that impairment “shall be based on the revised third edition.” The Court struggled a bit with what that sentence meant. Essentially holding that the plain language of that sentence is unclear, the Court concluded that this language does not mean that the Guides must be used. When a statute is clear and unambiguous, the courts' analysis should end with the plain meaning. When there is ambiguity, however, the analysis should continue.
The question arose because the treating physician assigned a 13% impairment rating, which was contested by the injured worker. The worker contested the physician's use of a method called "normalizing the impairment," which the worker contended was a departure from the method described by the AMA Guides Third Edition. The worker asserted that as the method departed from the Guides, it was inconsistent with the statutory requirement ("shall").
The “normalization” was described as the physician comparing the range of motion (the movement ability) in the patient/worker's injured joint (left knee) with the range of motion in his other (uninjured) knee. In this manner, the physician is not comparing the actual result in the injured knee to some overall population studied by the authors of the Guides, but to the more focused example afforded by this particular patient. The treating physician essentially concluded that the "normal" range of motion for this particular patient was less than "normal" in the large sample relied upon by the Guides. The physician therefore reduced the impairment rating for the injured knee to reflect the injury's effect upon that personal normal.
The practice of "normalization," the Court noted, is not the creation of the treating physician. It is quoted from a state publication, the Desk Aid, that identifies and describes the process. The publication asserts that such a practice "may be 'a better representation of the patient's pre-injury state than ... [the] population norms.'” There is also criticism of the methodology of the Third Edition as compared to the discussion of "normalization" found in the Fifth Edition.
The Court concluded that the statute which says the impairment "shall" be based upon the Third Edition does not "bar the physician from employing the process of normalization. " The Court focused not upon the "shall," but instead upon the "based.” That word, it concluded, "is critical to interpret(ation)." The word, it explained, "as a verb" means "“to find a foundation or basis for; to find a base for” and “to make, form, or serve as a base for.” (Citing the dictionary). As a noun, the Court noted multiple definitions including "a main ingredient”; “a first or bottom layer of something on which other elements are added”; “the fundamental part of something”; and “the starting point or line for an action or undertaking.”
Therefore, the Court concluded, that the legislature's intent in enacting the Colorado statute was that the Third Edition is to be "the starting point, not the exclusive fount, of impairment rating methodology." Had the legislature intended more limited reliance only upon the Third Edition, it would have used more concise language than "based on,” such as perhaps the word "only.” The Court noted that Kansas has reached "the same conclusion" regarding "based on" earlier in 2021.
The injured worker raised interesting arguments about the State's adoption of the Desk Aid. He contended that this was essentially the adoption of a regulation or the promulgation of a law. The Court conceded that it might be so if doctors were required to follow the Desk Aid or if it had been created or adopted using the "rule-making process of the Administrative Procedure Act." However, the Court concluded that this publication does not "require doctors" to use the Desk Aid or to depart from the Third Edition. The Court found no support that the State "intended it to serve as a rule that would mandate a particular result in all cases."
Alternatively, the Court explained, that even if the Desk Aid is a rule, it is not an inappropriate rule. Rather, it is a guide or interpretation that does not mandate an outcome. Therefore, it is "an 'interpretive rule' . . . which is not subject to the formal rule-making process." Finally, the Court noted that whether a physician has appropriately "applied the Guides" is a question of fact in any case. Therefore, the trial judge's determination in a particular case should be affirmed if it is "supported by substantial evidence." Thus, the chance of a worker to challenge a physician's impairment assignment is essentially limited to the trial process rather than the appellate process in most instances.
