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This is a salute to my colleague Colin Shalk, hence the title of this post. I don't know if Colin would ever hide a rock hammer in a Bible like our protagonist Andy Dufresne, but he is just as clever in the outcome of today's case du jour, with a little bit of chipping away at the supremacy of the AMA Guide, 5th Edition. Remarkably, Shawshank was initially overlooked by critics [much like the 6th Edition] when it came out (1994) because 1994 was a banner year for Hollywood (headed by Forrest Gump). Shawshank, however, has since appeared with regularity on many cable stations so that it has now become one of the most quoted movies in American culture. Almost as iconic as a Dr. Rodgers' permanency rating.
But back to Colin. And a result freeing this IAB panel from the bondage of the AMA Guides, 5th Edition, which has remained the more popular version of The Guides in terms of frequency and basis of IAB awards. And in Colin's own words, here's what went down:
"Cassandra and Scott [Mondell], a few months ago, I spoke to both of you about the Board's predilection for awarding impairments for artificial disc replacements for the lumbar spine. I spoke to a few others along the way. The case was eventually tried before the Board on October 18 with the Board being given the choice between Dr. Rodgers' use of the AMA Guide 5th Edition and 29% and Dr. Barrish's use of the AMA Guide 6th Edition and 7%. It awarded the 7% for the reasons stated in the decision.....
Jeff Gentilotti gave Dr. Barrish a pretty difficult time at his deposition. While I think that the man was ultimately right about his use of the 6th Edition Guide, he has a pretty rudimentary view of it. As usual, Dr. Rodgers appeared at the Board and tried to cobble a number of unrelated matters into one overall opinion and it just didn't hold together. [The Board] wasn't buying Dr. Rodgers' view of the similarities between a fusion and a disc replacement and his assumption that the patient having a disc replacement would ultimately lose motion and mimic a fusion.
The facts may well change from case to case but the case is probably going to live for the proposition that a disc replacement and the use of the AMA Guide 6th Edition are now intertwined."
The case in question is William Jackson v. Fletcher's Heating & Plumbing, IAB#1319732 (11/1/11), authored by Hearing Officer Lydia Anderson. A famous line from the movie comes to mind: "Get busy living or get busy dying." In this case, you just better "get busy" mastering the Guides-because I am not sure the issue of the 5th versus the 6th remains a "no-brainer". Moreover, the Board was not swayed by the argument that Dr. Rodgers has a certification in interpretation of the AMA Guides whereas Dr. Barrish does not.
For my part, I am going to "get busy" working on my next post.....
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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