United States: BRB Says LHWCA’s Use of “Most Recent Version” of AMA Guides Is No Improper Delegation of Power

While impairment ratings under the federal Longshore and Harbor Workers’ Compensation Act generally need not be comply with the AMA Guides, such is not the case for claims involving hearing loss and retiree benefits [see 33 U.S.C.S §§ 902(10), 908(c)(13)(E), 908(c)(23)]. In those disputes, impairment must be determined under “the most recent” version of the AMA Guides [33 U.S.C.S. § 902(10)]. In a recent dispute involving retirement benefits, the Benefits Review Board held that the language contained in the statute did not amount to an unconstitutional delegation of legislative power to the AMA. The Board acknowledged the holding of the Supreme Court of Pennsylvania, in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (Pa. 2017), but said Congress clearly understood that the AMA Guides would be altered from time to time, and had included appropriate language in its enactment. The Board decided to adopt instead the reasoning offered by the Supreme Court of New Mexico in Madrid v. St. Joseph Hosp., 928 P.2d 250 (N.M. 1996).

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Pierce v. Electric Boat Corp., BRB No. 18-0609, 54 BRBS 27, Dec. 7, 2020)

See generally Larson’s Workers’ Compensation Law, § 80.07.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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