Application of the AMA Guidelines in Determining Disability Under the Longshore Act

Application of the AMA Guidelines in Determining Disability Under the Longshore Act

In evaluating permanent impairment, practitioners using the Longshore and Harbor Workers' Compensation Act are sometimes confused as to the application of the AMA guides (American Medical Association, Guides to the Evaluation of Permanent Impairments (4th ed. 1993)).  That confusion includes a misunderstanding of the application of the guidelines and what the medical examiner's rating means in relation to an ultimate disability determination.

The AMA guides are only referred to in two places in the Act:  (1) to assess hearing loss claims pursuant to section 908(c)(13); and (2) to assess occupational disease claims pursuant to section 908(c)(23) which relates to section 902(10).  Practitioners should note that section 908(c)(23) applies only to voluntary retirees and should be approached with care.

This article does not primarily deal with the above mentioned sections of the Act which specifically cite the AMA guides.  Suffice it to say, with regard to hearing loss, there is a plethora of case law that deals with the application of the AMA guides for rating hearing loss.  One caveat is that when instructing medical examiners who will test and report on hearing loss, practitioners should take seriously the specific requirements of the OWCP and the U. S. Department of Labor.  (For example, OWCP district 13 has a helpful form available for those rating hearing losses titled "Checklist For Audiograms Performed After December 27, 1984.")

Scheduled Disability

In dealing with the application of the AMA guides to scheduled permanent partial disability, a brief understanding of the development of the AMA guidelines would be helpful.  Without going into great detail, suffice it to say that the mystique surrounding the AMA guides as scientifically based methods for rating disabilities is incorrect.  The AMA guides are not scientifically based systems.

The book Understanding the AMA Guides goes into more detail than time allows this author for explaining the scientific basis of the AMA guides  (Babitsky, Steven, and Sewall, Harry Dean, Understanding the AMA Guides, Wiley Law Publications, 1992). The authors frequently refer to one of the chief architects of the AMA guides, Dr. Alan L. Engleberg, M.D., M.Ph.  Dr. Engleberg is quoted on a number of occasions as giving lie to the belief that the AMA guides come from a well tested epidemiological set of studies.  Clearly that is not the case.  Therefore, these guides should be used with great caution and should not be the ultimate arbiter of disability evaluation under any system, but even more so under the Longshore and Harbor Worker's Compensation Act which does not mandate their use for scheduled disabilities.  The authors give the following excellent summary about the reliability of the AMA guides as scientific methods:

The AMA guides themselves provide only limited general references. The AMA guides contain impressive lists of consultants that provide no bibliography nor even a suggestion of how the ratings were arrived at.  There is no indication that an independent testing of validity or reliability was done prior to the publication of the guides.  (Understanding the AMA Guides, at p. 4.)

Generally, under the Act, practitioners should understand that the factfinder is not bound to accept the opinion or theory of any particular medical examiner.  The judge may rely upon his/her personal observation and judgment to resolve conflicts in medical evidence.  The judge is not bound to accept the opinion of a physician if rational inferences cause a contrary conclusion.  (Todd Shipyards v. Donovan, 300 F.2d 41 (5th Cir. 1962).)  The BRB has upheld an ALJ's decision not to follow the AMA guides. See Fisher v. Strachan Shipping Co., 8 BRBS 578 (1978); Mazze v. Frank J. Holleran, Inc., 9 BRBS 1053 (1978); Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979). See also Grispino v. General Dynamics Corp., 29 BRBS 777(ALJ) (1995).

The author urges practitioners to use the AMA guides when appropriate and augment them when they are insufficient to evaluate a scheduled disability.  Practitioners can argue that the AMA guides, when applied by a disability evaluator, may not be sufficient to fully describe the disability, may over describe the disability, or may be not be describing the disability at all.  The author urges practitioners to read chapter 1 of the AMA guides.  That chapter will acquaint the practitioner with the limitations of the AMA guides in assessing disability.  The AMA guides themselves described their limitations:

A critical problem is that no formula is known by which knowledge about a medical condition can be combined with knowledge about other factors to calculate the percentage by which the employee's industrial use of the body is impaired.  Accordingly, each commissioner or hearing official must come to a conclusion on the basis of assessment of the available medical and nonmedical information.  The Guides may help resolve such situations, but it cannot provide compete and indefinite answers.  Each administrative or legal system that uses permanent impairment as a basis for disability rating should define its own means for translating knowledge about impairment into an estimate of the degree to which the impairment limits the individual's capacity to meet personal, social, occupational, and other demands, or to meet statutory requirements.  (AMA guides, 4th edition, note 2, section 1.5.)

With the above in mind, it is incumbent upon each practitioner to make sure the medical evaluators's understanding of the whole situation is reflected in any report upon which a rating is based.  The bottom line is that the practitioner must be more creative in applying the AMA guides than would have been supposed.

Suggestions to the Medical Examiner

Correct application of the AMA guides can only be accomplished if your medical examiner understands that the guides are being used and how they are to be used.  It is especially important that the medical examiner understands what job is to be effected by any physical limitations which the examiner may describe.

It would be a serious error on the part of the practitioner not to familiarize the medical examiner with the limitations of the AMA guides.  Most particularly, it would be an omission not to include or make reference to language of the guides themselves in Chapter 1 which states the following:

It must be emphasized and clearly understood that impairment percentages derived according to the Guides' criteria should not be used to make direct financial award or direct estimate of this ability.

. . .

An impairment percentage derived by means of the AMA Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.  (AMA guides, section 1.5.)

But the examiner should also understand that a claimant's daily activities do not necessarily equate with particular job duties.  The age of the individual and other peculiar circumstances that may or may not impede the injured worker in his/her ability to engage in work in the open labor market are not taken into account by the AMA guides.  Therefore, the medical examiner should be aware of the fact that they have more work to do than just measuring limitations of motion.  They must understand the various duties of the job that the injured worker must go back to.  One example of a form which could be used by medical examiners is a State of California form titled "Description of Employee's Job Duties" (DIA Form No. RB-91).

The author suggests that there are reasonable alternative systems of rating a scheduled disability that may be accepted by a factfinder instead of the AMA guides.  There is no reason why the medical examiner cannot use these alternative systems for rating purposes.  For example, the American Board of Orthopedic Fellows uses its own rating system.  Another rating system may give a more accurate rating for a particular impairment than given by the AMA guides. Practitioners may argue that their own state rating system has a more accurate way of evaluating a particular impairment.  Ultimately, it is left to the creativity of the practitioner to argue that there is a better and more accurate way of rating disability.  It should never be forgotten that the factfinder has great discretion in applying any reasonable disability evaluation to a scheduled injury, other than to those injuries mentioned in the Act as requiring use of the AMA guides.

For Future Consideration

The AMA has organized a committee that has started work on the 5th edition of the AMA guides.  What may come out of that is not known, however, the committee is seeking public input through a survey at the AMA website, at http://www.AMA-Assn.org.  Clearly what will make the new edition of the AMA guides more effective are public input and a more scientific basis for obtaining disability ratings.

Conclusions

We often find that those who are involved in workers' compensation representing claimants or employers fall into patterns that become set.  The nature of a practice with a high number of cases being handled by an individual practitioner sometimes places efficiency before creativity.  However, in those cases that involve the rating of permanent partial disability under the Act for scheduled injuries, the claimants' representatives must take a second look at the concept of rating scheduled injuries and what disadvantages a worker may experience from the consequences of an industrial injury when competing in the open labor market against those who are not disabled.  Likewise, for those who are representing the employer, a thorough evaluation of the claimant's job duties may lead a medical examiner to see that the requirements of the job are not impacted as much by the injury as generally thought.

© Copyright 1998 Matthew Bender & Company, Inc., a member of the LexisNexis Group All rights reserved. This article by Steven M. Birnbaum, San Francisco, CA , was originally published in the April 1998 issue of the Benefits Review Board Service Longshore Reporter (LexisNexis). The article is excerpted from Mr. Birnbaum's syllabus handout at the Loyola Annual Longshore Conference, March 5-6, 1998, New Orleans, LA.

Impairment Guides Resource Center