Emerging Legal Trends

1. Emerging Legal Trends James Stabler, J.D. Kevin Braun, J.D.

2. Emerging Legal Trends The AMA Guides for Evaluation of Permanent Impairment – controversy over use of Guides and Sixth Edition James Stabler, J.D.

3. Legal Issues Arising From Use of AMA Guides

4. Most widely used basis for determining impairment in state and federal workers’ compensation, automobile casualty and personal injury. • Sixteen states make use of the Fifth Edition (California, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Massachusetts, Nevada, New Hampshire, North Dakota, Ohio, Rhode Island, Vermont and Washington). • Ten states use the Sixth Edition which was released at the end of 2007: Alaska, Arizona, Louisiana, Mississippi, Montana, New Mexico, Oklahoma, Pennsylvania, Tennessee and Wyoming.  • Eight states still commonly make use of the Fourth Edition (published in 1993): Alabama, Arkansas, Kansas, Maine, Maryland, South Dakota, Texas, and West Virginia. Colorado uses the Third Edition, Revised (published in 1990).  Connecticut does not stipulate which Edition of the Guides to use.Source: Impairment Resources, LLC

6. How the Sixth Edition Differs • Changes in rating values: • Providing impairment ratings for conditions not previously ratable, yet resulting in loss • Not providing additional impairment for surgery (and other therapies intended to improve function) and thus decrease impairment • Adjustments for improved results (i.e. joint replacements)

7. AMA Study - Comparing Rating Differences Between the Guides • The average whole person permanent impairment (WPI) per case : • 4.82% WPI per the Sixth Edition • 6.33% WPI per the Fifth Edition • 5.5% WPI per the Fourth Edition • Overall average whole person permanent impairment for each diagnosis: • 3.53% WPI per the Sixth Edition • 4.59% WPI per the Fifth Edition • 4.00% WPI per the Fourth Edition. • Source: AMA Guides Newsletter, Jan.-Feb. 2010, “Comparative Analysis of AMA Guides Ratings by the Fourth, Fifth and Sixth Editions” Christopher R. Brigham, MD, Craig Uejo, MD, MPH, Aimee McEntire, and Leslie Dilbeck

8. Comparison of Ratings by Edition – Whole Person(Slide courtesy of Christopher R. Brigham, MD)

9. Comparison of Ratings Surgical vs. Non-surgical (Slide courtesy of Christopher R. Brigham, MD)

10. Findings of Comparative Study • Statistically significant difference between ratings when comparing the Sixth Edition with the Fifth Edition, but not comparing the Sixth Edition to the Fourth Edition. • Average values had increased from the Fourth Edition to the Fifth Edition without clear scientific rationale. • Many of the more meaningful changes with the Fifth Edition were for surgical spine diagnoses, no significant difference with the Fourth Edition. • Diagnoses not previously ratable (e.g. soft tissue) may result in small impairments. • Consistent process resulted in improved inter-rater reliability.

11. Criticisms of Sixth Edition • Elimination of the ROM method - DRE method, used in prior editions, has been found unreliable as a matter of law in some jurisdictions because it rates by diagnosis, not by measuring impairment. • The pain add-ons in the Fifth Edition are no longer permitted in the Sixth Edition. • Todd McFarren, “AMA Guides, Sixth Edition Arrive on the Scene” 2008, Workers’ Compensation Law Blog, • http://www.lexisnexis.com/Community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2008/12/18/AMA-Guides_2C00_-Sixth-Edition-Arrive-on-the-Scene.aspx

12. Legal issues arising from application of the AMA Guides or a particular edition • Unconstitutional delegation of legislative authority • Due Process • Equal Protection • Which edition to use – edition that was in effect on the date of injury, date of legislation or date of evaluation?

13. Unconstitutional delegation of legislative authority • Gutierrez v. Industrial Commission, 1 CA-IC 09-0040 (Ariz.App. Filed 7/8/2010 (pending petition for review to Arizona Supreme Court) • Madrid v. St. Joseph Hosp., 122 N.M. 524, 530 (N.M. 1996)(“Where a private organization's standards have significance independent of a legislative enactment, they may be incorporated into a statutory scheme without violating constitutional restrictions on delegation of legislative powers. . . Periodic revisions of the standard will not transform an otherwise constitutional and non-delegatory statutory provision into an unconstitutional delegation of legislative power. Where a standard is periodically updated because of new scientific developments recognized by eminent professionals interested in maintaining high standards in science, the standard may still be adopted by the Legislature.” (Quoted in Gutierrez) • See also, Cantalope v. VFW Club, 2004 SD 4, P17 (S.D. 2004) Where the legislature has expressly incorporated a private organization's standards into our statutes and where those standards expressly allow for professional discretion in reaching a determination, such discretion, if supported by competent medical evidence and if consistent with the general purpose of the AMA Guides, satisfies the statutory requirements of SDCL 62-1-1.2. • Contra Repass v. Workers' Comp. Div., 212 W. Va. 86, 102 (W. Va. 2002) (The Guides is not the objective, medical evaluative system that it purports to be and that has been so appealing to legislators and other decision makers. Instead, like any impairment rating scheme, it rests in large part on important and difficult normative judgments. Yet the Guides obscures this from the reader; it is laden with hidden or poorly explained value judgments that frequently are gender-biased. The Guides' flawed promises of objectivity are especially troubling because they appeal to the craving of legislators and other decision makers for certainty and clarity in the difficult arena of impairment and disability assessment.  By uncritically embracing the Guides, these decision makers delegate significant normative decisions to the book's medical authors.)

14. Due Process • The claim: Using the Guides to determine eligibility for workers' compensation benefits is arbitrary and capricious, and denies workers an opportunity for a fair and impartial hearing which contemplates the individual circumstances of each case. Rejected:Madrid v. St. Joseph Hosp., 122 N.M. 524, 534 (N.M. 1996); see also • Dayron Corp. v. Morehead, 509 So. 2d 930, 931 (Fla. 1987); Slover Masonry, Inc. v. Industrial Comm'n, 158 Ariz. 131, 761 P.2d 1035, 1039 (Ariz. 1988) - When an injury is not covered by the AMA Guides, it is permissible to rely upon medical testimony of permanent impairment based upon other generally accepted medical standards.

15. Which edition applies? • If edition not specified by law, or if law or rule states “most recent edition” : • “Most recent edition” means edition in effect at time of disability evaluation. See Guiterrez and Madrid • Contra, McCabe v. North Dakota Workers Compensation Bureau, 1997 ND 145, P16 (N.D. 1997) (We therefore construe NDCC 65-05-12 and 65-01-02(26) to adopt the "most recent" and "most current" edition of the Guides in existence at the time of their enactment.)

16. Emerging Legal Trends Challenges to the exclusive remedy Kevin Braun, J.D.

17. Exclusive Remedy Challenges • State Statutes control the availability of exclusive remedy. • Generally applies only when compensation liability is available. • Alexander and Ostermiller v. Bozeman Motors, Inc. 2010 MT 135. • Plaintiffs were assigned to a satellite office selling RVs • The office was a prefabricated building and did not have a heater installed • A propane stove was purchased • Ostermiller claims he became ill as a result of carbon monoxide from the stove • Alexander was assigned to work at the satellite office after Ostermiller complained • Both employees complained of health deterioration following exposure

18. Exclusive Remedy (cont.) • Both filed suit claiming negligence, intentional battery, and negligent infliction of emotional distress. • The Defendant moved for summary judgment and that motion was granted. • The Supreme Court reversed the lower court as to Alexander but affirmed as to Ostermiller. • Statute affords exclusive remedy unless the worker is intentionally injured by an intentional and deliberate act of the employer. An intentional injury is defined to be one that is caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee and there is actual knowledge that an injury is certain to occur.

19. Exclusive Remedy (cont.) • The Court concluded that an actual intent to injure can be inferred from the facts as commonly occurs in criminal law. • See an increase in cases with EL implications as a result.

20. QUESTIONS??