NAWCJ

…Will the new guides be lost in translation?



by Honorable David Langham
Deputy Chief Judge of Compensation Claims
Pensacola, FL


Reflections on the AMA Guides and the Recent Critiques of the New Digital Format

 

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 that 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 concludes 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 judgement.”[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 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 adoption of a” different impairment schedule another “person gets significantly less.” In this, there is 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 how states employ them.[xxxiii]

That is not to ignore the existence of more profound or fundamental criticisms. There are those whose objections run deeper than the revision process. One critic has opined that use of the Guides may be “an unappealing, if not Orwellian, exercise.” [xxxiv] In a broader criticism than the current debate of editions and amendments, this physician argues the “AMA Guides offer little, if any, insight into disability.”[xxxv] These criticisms are arguably broader, but nonetheless remind one of the incongruities between impairment and disability. This also reinforces the AMA’s foundational warning that impairment and disability are not synonyms despite the potential for interrelationship between the two constructs.

Criticism in the commentary has been noted by the Pennsylvania Supreme Court. Perhaps referencing the critic above, the court mentions the statutory link between impairment and disability benefits in Duffey v. Workers’ Comp. Appeal Bd. (Trola-Dyne, Inc.)[xxxvi]:

[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.

Court’s willingness to recognize criticisms is notable. Litigators and critics may find sympathetic ears for future claims related to the intertwining of impairment ratings and disability. The dissenting opinions in that decision highlight the potential for fundamental conflicts between the law and medicine, despite the two now being long-intertwined. It appears possible that further litigation may occur regarding these base criticisms of the Guides methodology.

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,” that supports evolution in thinking about impairment.

The article also quotes Dave Sosnow, Vice President for product management at the AMA. He expresses acknowledgment that 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 a 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, 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 upon 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 upon how this tool is effectuated in the determination of benefit or damages. At the outset, 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 even approximate disability. For example, if a judge fell at work and injured her shoulder, underwent a rotator cuff repair, and had 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, 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 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 disability, legislators have elected in various instances to equate impairment with disability and thus with benefits or damages, impairment as 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. And 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 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 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 on 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 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 adoption of the Fourth Edition. However, that language thereafter effectively adopted amendments to impairment ratings in both the Fifth and Sixth Editions. Those editions, 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 now 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 there 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 updating.

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 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 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 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 calculation of benefits.

For legislative and regulatory authorities, it may be preferable to acknowledge the disconnect between impairment and disability; 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, 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 acknowledgement 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 acknowledgement that impairment does not equal disability. The effect of the Rand economist proposal might be the acknowledgement 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 intention 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 which 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 levelled 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 michrochasm?). 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 system transparency and effectiveness, not the individual interests of the particular groups from which those professionals come.

* David Langham is the Florida Deputy Chief Judge of Compensation Claims. The opinions expressed are his own, and do not reflect any policy or position of the state. The author serves as a Panel Advisor to the American Medical Association AMA Guides® Editorial Panel. This article, the questions and conclusions expressed therein, and any opinions are solely of the author except as where directly attributed. This article is not endorsed or approved by the AMA or the AMA Guides® Editorial Panel.

[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. § 306(a.2).

[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.