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Workers' Compensation

A Lesson in Pugilism: The Battle of the AMA Guides in DE

This week's post is courtesy of Kris Starr who emailed me to say: "Rodgers v. G. Dean MacEwen. I sort of won...."  And for those of you who think that any sparring which occurs at the IAB over the AMA Guide 5th versus 6th is just going to be a sweet series of pitty-pat punches, here is a rare example of that pound for pound legend, Dr. Stephen Rogers, kissing the canvass.  Corner men in the case of Christopher Taylor v. RGS Electrical, IAB # 1322587 (8/12/11) were David Arndt for the claimant and Kristopher Starr for the employer.

So what was at stake? Claimant seeking 11% to the thoracic spine as rated by Doc Rodgers.  Sounds credible, not too greedy, right? Stepping up to the ring to challenge that impairment was Dr. Dean MacEwen, who I would have perceived as nothing more than a white collar boxer.....but the joke is on me.  I have seen his name before, for sure, and I would have said this palooka is not for me.  Well, Kris Starr knows better-- in fact, as a former IAB Hearing Officer he just might know it all.

Did you know Dr. MacEwen has performed thousands of spine surgeries?  Did you know he has published widely in the area of spine surgery? Did you know he did three DMEs?  Did you know his real name is George?  Shame, shame, shame on me for thinking he was just another one of those docs in a box..........

Anyway, Dr. Rodgers rated 11% to the thoracic in reliance on the AMA Guide 5th.  Dr. MacEwen (God-given name George) rated 6% to the thoracic based on the AMA Guide 6th.  His glass jaw? There was no conversion factor.  Oh snap! Don't you just hate it when that happens?

So what did the Board do? By majority decision, they found in favor of a 6% whole person rating per Dr. MacEwen (using a lumbar spine conversion factor of 0.75) and came up with an 8% regional impairment awarded.  What happened to Dr. Rodgers and the 5th Edition?  They took a Sunday punch, based on the Board's observation that the 5th Edition rating was just "too high given the lack of radicular symptoms and the relatively mild work-related injury suffered by the claimant."

And how do you hit below the belt in a case like this?  No attorney's fees.   Talk about a blow to the pocketbook.  Yep, power fighter Kris had offered an 8.5% impairment outside the 30 days (don't you just hate it when that happens?)

"[His] repertoire, thrown with equal speed and power by either hand, includes every standard punch from a bolo to a hook-and a few he makes up on the spur of the moment," observed Time magazine (6/25/51).  A little tribute to Sugar Ray Leonard that would equally apply to our man Kris, don't you think?

Irreverently yours,
Cassandra Roberts

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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