ABA TIPS Task Force on the AMA Guides

ABA TIPS Task Force on the AMA Guides

In July 2008 the American Bar Association Tort Trial & Insurance Practice Section's Task Force on the AMA Guides met for the first time in Chicago. Since then, it has been actively meeting with representatives from various states, the insurance industry, medical organizations, and the editors of the American Medical Association's Guides to the Evaluation of Permanent Impairment.

John Vittone, the Chief Administrative Law Judge of the U.S. Dept. of Labor Office of Administrative Law Judges, serves as the Chair of the Task Force.

Hervey Levin, an attorney from Dallas, Texas, and a former chair of the Workers' Compensation Committee of the Tort Trial & Insurance Practice Section, is one of the section delegates of the ABA House of Delegates for the Torts, Insurance & Practice Section and serves as the assigned liaison from the section delegates to the Task Force.

Peter S. Barth, retired professor and former Head of the Economics Department at the University of Connecticut serves as the reporter for the Task Force. Professor Barth was appointed Executive Director of the National Commission on State Workmen's Compensation Laws 1971-1972 and was active in the fields of workmen's compensation, manpower, and labor market.

John F. Burton, Jr. (Prof. Emeritus Rutgers University), Chairman, National Commission on State Workmen's Compensation Laws, 1971-1972, and author of publications and reports concerning workers compensation for decades, serves as the principal analyst of survey responses.

Other members of the Task Force include Keith Bateman, Vice President, Workers’ Compensation, Property Casualty Insurers Association of America (PCI), Barry Bowlus, Senior Acquisitions Editor, American Medical Association, Christopher R. Brigham, MD, Brigham and Associates, and Senior Contributing Editor to the AMA Guides, Barry Eisenberg, Executive Director, American College of Occupational and Environmental Medicine, Richard LaFata, Godwin, Erlandson, MacLaughlin, Vernon & Daney, Todd McFarren, Rucka, O'Boyle, Lombardo and McKenna, past president of the Work Injury Law and Advocacy Group, J.Mark Melhorn, MD, FAAOS, FAADEP, FACOEM, FACS (occupational orthopaedic physician), President of the American Academy of Disability Evaluating Physicians, Leonard Y. Nason, The Law Offices of Leonard Y. Nason, Alan S. Pierce, Alan S. Pierce & Associates, Gerry Rosenthal, Rosenthal, Levy & Simon, Matt Schiff, Schiff & Hulbert, Hon. Todd Seelig, Workers' Compensation Judge, Penn. Dept. of Labor and Industry, Hon. David B. Torrey, Workers' Compensation Judge, Penn. Dept. of Labor and Industry, and Bruce Wood, Associate General Counsel, American Insurance Association.

Objectives of the Task Force 

The Task Force has set out to understand the AMA Guides. Specifically, how is impairment determined? How is impairment used to convert it into a compensable disability? 

"There are times when people forget impairment is not necessarily equal to disability on a one-on-one basis," says Levin. "You can take a look at each of the different workers' comp systems and look at the way [the Guides] are being used, once the impairment rating is developed, and try to analyze how each state tries to convert, interpret, or otherwise use the impairment."

The Task Force also seeks to understand the method(s) by which impairments used in the Guides are evolved or determined by reviewing the internal development of the AMA Guides.

Concerns and questions exist concerning the manner in which the Sixth Edition impairments changed from prior editions – some of them fairly significantly – such that some states have either refused outright to use the Sixth Edition or placed it on hold in order to study the manner in which the impairment determinations using the Sixth edition have affected compensable disability outcomes.

An element of the concerns and questions generated by the changes made in the Sixth Edition is the issue of "evidence-based medicine.

Are the impairments used in the Guides evidence based? Apparently some are and some are not. Is there evidence available to make more of the impairments evidence-based? "There appears to be, from the occupational disability doctors to the AMA doctors and other doctors a question here," says Levin. "We are observing that dialogue between them. It is not always easy, but that is one of our objectives."

The Macro View

The Task Force seeks a macro view of the Guides, and not a microscopic examination of why a particular back injury gets an impairment of X or Y.

"We are trying to look at what are the methodologies they are using or not using, and fundamentally the process of determining impairments, whatever the number may be," explains Levin.

But is the number faulty or sustainable?

Levin acknowledges that what he has learned so far is that some of the impairments can be based upon evidence-based objective bases and foundations, while other determinations are reported to be subjective.

"In some respects, so far, they appeared to be subject to the variability of whatever group is assembled to work on that particular [AMA Guides] chapter," says Levin. “I hope our surveys and our further examination of the process will help us determine if there is a chapter-by-chapter problem because different parts of the body are being viewed by different groups over time. The consistency between the groups trying to figure out the bases for impairments in the same chapter in different editions may not necessarily be across-the-board equal. Its part of what we must understand."

While the Task Force does not plan to burrow into the impairment determinations of any one chapter of the AMA Guides, it did learn anecdotally that some heart-related impairments in the Fifth Edition were 90+ percentile, but were only 60+ percentile in the Sixth Edition. Understanding the “objective” rational for this drop in percentile in a broader sense is a goal of the Task Force.

Task Force Recommendations

Will the Task Force eventually issue recommendations with regard to future legislation concerning how the states utilize the Guides, particularly in terms of impairment versus disability?

The Task Force has launched the first of two surveys that it sent out to two attorneys in each of the 50 states, with the goal of obtaining basic information on each state and its use of the AMA Guides. Responses from the first phase are starting to come in now.

Phase Two of the survey would focus on about 10 jurisdictions with a much more intensive list of questions about the guidelines being used in that state. In each of those jurisdictions selected, people from different parts of the workers' compensation system in that state will be asked to complete the survey.

"I would say we are a long way from being able to get any useful information from any of those survey responses," says Levin.

Has the Task Force found that some states use the AMA Guides as a tool, whereas other states use it as a litmus test, and that the Guides are being utilized in sort of a hodgepodge of manners across the United States?

" 'Hodgepodge' is certainly an interesting, unscientific way of describing the fact that all of our workers' compensation systems are by definition unique," says Levin. "I accept that as a given and I would look past it because it is what I would expect."

A serious question has been raised about state statutes that call for the automatic adoption of the latest edition of the Guides. Levin indicates that it could result in a recommendation from the Task Force.

According to Levin, "Some have thought, that automatic adoption of the ‘latest edition of the Guides’ may well be in violation of separation of powers doctrines that would make it unconstitutional in some of the jurisdictions if they were ever to be challenged, because the doctors to whom the decisions are being delegated [the authors of the various chapters of the Guides] are not part of either the legislative branch or the executive branch of the governments in question."

Levin points out that courts are normally loathe to undo workers compensation systems since workers compensation is a uniquely legislative construct in derogation of the common law, and it would be interesting to see if such a challenge would be in some way supported.

"I would think if you do apply the constitutional rules pertaining to separation of powers the outcome of a challenge to this delegation of compensable disability determination through the doctors determination of impairments in the various editions of the Guides, should be that this is unconstitutional, in my humble opinion as they say without being a constitutional scholar" says Levin. “It will be interesting to see what the constitutional scholars think about this process where neither the legislature nor the executive branch reviews and approves the “latest” edition before it is effective.”