Latest Developments in State Handling of AMA Guidelines

Currently, 32 states require physicians to use some edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) in making their assessments of permanent impairment for injured workers. Of the remaining states, 15 more allow the use of Guides. Praised by some as providing at least a somewhat objective basis for determining medical impairment, yet derided by others who argue that they are the ultimate example of “cookbook medicine,” the Guides are nevertheless an important part of our medical claims determination process. 

Each June & July, as my colleague, Robin Kobayashi, and I pull together the annual edition of Occupational Injuries and Illnesses [LexisNexis Matthew Bender], we comb through the reporters for appellate decisions in which the AMA Guides have played a pivotal role. During the past year, Pennsylvania turned out to be the key battleground states for the Guides, but there were important decisions from a number of other jurisdictions. I have highlighted a few of those decisions below.

Pennsylvania:

WCJ should not conflate the qualifications of the medical expert with the persuasiveness of the expert’s testimony.

IA Constr. Corp. v. Workers’ Comp. Appeal Bd. (Rhodes), 2016 Pa. LEXIS 1070 (May 25, 2016)

PROCEDURAL POSTURE: Appeal from an order of the Commonwealth Court that in turn had reversed an order of the Workers’ Compensation Appeal Board that affirmed a denial of the employer’s modification petition.

OVERVIEW: In 2005, Claimant suffered injuries in a vehicular accident, while in the course of his employment with the employer. In 2007, Claimant was awarded total disability benefits, where the WCJ found that Claimant had sustained work-related injuries, including traumatic brain injury with organic affective changes, persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries. Several years later, the employer initiated a review of Claimant’s impairment rating. The Bureau directed a physician to conduct an IRE. Following the examination, the physician assigned a discrete impairment rating to each of Claimant’s conditions, which, together, comprised the 34 percent “whole person impairment rating” under the Sixth Edition of the AMA Guides. At the hearing, Claimant did not testify on his own behalf, nor did he present medical testimony or other evidence. The WCJ denied Employer’s modification petition, rejecting the physician’s impairment rating opinion. Initially, the WCJ expressed a concern that the doctor had inappropriately “lumped” an array of discrete injuries into three categories. In the WCJ’s estimation, the physician’s assessment of cognition was an unduly limited one, since he performed only a cursory examination and otherwise relied upon only a limited range of medical records. The WCJ also noted that the physician specialized in physical medicine and pain management, not neurology, and that she was not persuaded by his opinion. The Commonwealth Court reversed, finding that the physician met the WCA’s stated qualifications for IRE physicians and that he had followed the prescribed methodology for conducting the examination. Claimant appealed.

OUTCOME: Reversed and remanded.

AMA GUIDES DISCUSSION:

Emphasizing that with regard to expert medical testimony, one should not conflate the qualifications of the expert with the persuasiveness of the expert’s testimony, the Supreme Court of Pennsylvania reversed the Commonwealth Court, holding that a WCJ’s rejection of the expert medical opinion of the IRE physician was authorized where the WCJ found the IRE’s opinion was underdeveloped and out-of-specialty. The Supreme Court said certainly the physician was “qualified.” That did not mean, however, that his testimony and reports were persuasive. The Court acknowledged that the WCJ could not base the persuasiveness issue merely upon the fact that the expert was testifying out of his or her specialty. Here, however, the physician apparently based his mental acuity determination after asking the claimant a few basic questions, whereas the AMA Guides required a much more detailed mental status examination. The Court added that to the degree that there was an element of unfairness associated with the Bureau’s handling of individual IRE physician assignments, that was a systemic concern most appropriate to administrative and/or legislative consideration.

Statute requiring physicians to utilize “the most recent” edition of the AMA’s Guides is an improper delegation of legislative authority.

Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), appeal granted, in part, Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 133 A.3d 733 (Pa. 2016)

PROCEDURAL POSTURE: Claimant sought review of an order of the Workers’ Compensation Appeal Board affirming a decision by a Workers’ Compensation Judge that modified her benefits from total to partial disability under § 306(a.2) of the state’s Workers’ Compensation Act.

OVERVIEW: Employer filed a request for designation of a physician to perform an impairment rating evaluation (IRE), following which Jeffrey M. Moldovan, D.O., evaluated Claimant in October 2011 and provided a ten-percent impairment rating under the Sixth Edition of the Guides. In April 2012, Employer filed a modification petition, seeking to convert Claimant’s total disability benefits to partial disability benefits thereby reducing the amount of compensation that would be paid to 500 weeks under § 306(a.2)(7) of the Act, 77 P.S. §511.2(7) (“In no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur….”). Claimant argued, inter alia, that it was error to consider the 6th Edition of the Guides.

OUTCOME: In a sharply divided decision, the Commonwealth Court held that the statutory provision in § 306(a.2) of the state’s Workers’ Compensation Act [77 Pa. Stat. Ann. § 511.2] that requires physicians to utilize “the most recent” edition of the Guides in determining the level of an injured employee’s permanent impairment was an improper delegation of legislative authority and, accordingly, was unconstitutional. The majority noted that in 1996, when the statute was modified to require the use of the AMA Guides, 4th Edition, the Legislature had examined the Guides and determined that they conformed to public policy. Adopting subsequent editions as the standard, without an examination and determination that they were consistent with the state’s interests was improper, however. The majority noted that the Legislature could delegate authority and discretion in connection with the execution and administration of a law to an independent agency or an executive branch agency where it had first established primary standards and imposed upon others the duty to carry out its declared legislative policy. Section 306(a.2) went too far, however. It provided a private party—the AMA—with carte blanche authority to implement its own policies and standards and then required the state to adopt them sight unseen.

AMA GUIDES DISCUSSION: While claimants in other states had earlier tried to make the improper delegation of legislative authority argument, none had been successful. Until further review by the Supreme Court of Pennsylvania, this decision stands for the proposition that the 4th Edition must be utilized within the state.

Protz holding may be utilized in other cases only if Claimant made unconstitutional delegation of legislative powers an issue.

Winchilla v. Workers’ Comp. Appeal Bd. (Nexter Broadcasting), 126 A.3d 364 (Pa. Commw. Ct. 2015), appeal denied, 130 A.3d 1293 (Pa. 2015)

PROCEDURAL POSTURE: Claimant sought review of the order of the Workers’ Compensation Appeal Board that affirmed a decision of a Workers’ Compensation Judge that granted the employer’s petition to modify Claimant’s benefits from total to partial disability under Section 306(a.2) of the Workers’ Compensation Act (Act).

OVERVIEW: In August 2002, Claimant sustained a work injury to his lower back. The Employer acknowledged the compensability of the injury and began to pay benefits. Claimant returned to work until February 2005 when worsening pain rendered him unable to perform his job duties. Subsequently, Claimant submitted to an impairment rating evaluation (IRE) performed by a physician, who provided a whole-body impairment rating of five percent under the Sixth Edition of the AMA Guides. The employer subsequently filed a modification petition, seeking to convert Claimant’s total disability benefits to partial disability benefits, thereby reducing the amount of compensation that could be paid to 500 weeks. In his answer to the modification petition, Claimant contended that the Act’s “IRE provisions are: as applied to Claimant and/or facially, unconstitutional, capricious, arbitrary, not reasonably calculated, confiscatory, not to be used to assess disability in the workers’ compensation sense and extinguish rights.” At hearings before the WCJ, the employer submitted a copy of the physician’s IRE in support of its modification petition. Claimant did not submit any medical evidence but instead relied on a decision of the Social Security Administration (SSA) finding Claimant totally disabled from substantial gainful employment based upon his back injury and hearing-loss impairment. The WCJ granted the employer’s modification petition, adopting the physician’s medical opinion regarding Claimant’s IRE as the only medical evidence presented in the case and rejecting the SSA’s decision as non-binding. The WCJ also dismissed Claimant’s constitutional challenge, finding that Claimant presented no evidence to support this contention. The Board affirmed in essential part.

OUTCOME: The Commonwealth Court initially issued its unpublished opinion in this case on the same day it released its Protz decision, finding here that Claimant had waived the constitutional argument, by failing to assert it more specifically in the petition for review (i.e., Claimant did not claim that Section 306(a.2) was an unconstitutional delegation of power). Subsequently, the Commonwealth decided to publish its decision. In doing so, Winchilla operates so as to restrict severely the number of claimants who can challenge their disability ratings under Protz. They may do so only if the claimant raised the issue properly before the Board and/or the Commonwealth Court.

AMA GUIDES DISCUSSION: Unless the claimant has specifically raised the issue of the unconstitutional delegation of power, as it was raised in Protz, any modification order in which the IME physician used the 5th or 6th Edition of the Guides would stand.

Illinois:

Claimant is not required to submit AMA Impairment Report in order to support award of PPD benefits.

Corn Belt Energy Corp. v. Illinois Workers’ Compensation Comm’n, 2016 IL App (3d) 150311WC

PROCEDURAL POSTURE: The employer appealed a decision of the Circuit Court of Bureau County that confirmed an award by the Illinois Workers’ Compensation Commission.

OVERVIEW: Claimant sought workers’ compensation benefits. Following a hearing, the arbitrator determined claimant sustained accidental injuries that arose out of and in the course of his employment and awarded claimant medical expenses of $1,480, less several credits to the employer, and 15 weeks’ permanent partial disability (PPD) benefits for a 3% loss of the person as a whole. The Commission, with one commissioner dissenting, modified portions of the arbitrator’s decision but otherwise affirmed and adopted his award. On judicial review, the circuit court of Bureau County confirmed the Commission. The employer contended on appeal that (1) the Commission erred in finding claimant’s condition of ill-being was causally connected to his work accident, (2) the Commission erred in awarding claimant PPD benefits where he failed to introduce into evidence a PPD impairment report as described in section 8.1b(a) of the Act (820 ILCS 305/8.1b(a) (West 2012)), and (3) the Commission’s PPD award must be reversed because it failed to adequately address the remaining factors identified in section 8.1b(b) of the Act (820 ILCS 305/8.1b(b) (West 2012)) for establishing a PPD award.

OUTCOME: The appellate court, with one justice dissenting, held that that the express language of section 8.1b(a) did not limit the Commission’s ability to award PPD benefits where no AMA report was submitted. The majority said that section 8.1b merely requires that if an AMA rating report has been provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability.

AMA GUIDES DISCUSSION: The appellate court found that section 8.1b(a) does not contain any language that obligates either a claimant or an employer to submit a PPD impairment report. Additionally, it contains no language limiting the Commission’s ability to award PPD benefits when no report is submitted. Accordingly, a claimant is not required to obtain an AMA impairment report in order to establish permanency under section 8.1b. The employer can, of course, provide the report. If a physician prepares such a report, it must be prepared utilizing the 6th Edition of the Guides. Unless the employer or the claimant seeks the report, however, the case will be tried without one and the Commission’s determination of PPD will be based solely on the remaining four factors of the statute:

1      The occupation of the injured employee

2       The age of the employee at the time of the injury

3      The employee’s future earning capacity and

4      Evidence of disability corroborated by the treating medical records

It remains to be seen whether Corn Belt will be appealed.  I’ll keep readers posted.

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