Should California Switch to the AMA Guides Sixth Edition?

Should California Switch to the AMA Guides Sixth Edition?

 By Robert G. Rassp, Esq.

This is a no holds barred editorial commentary. It is not intended to be neutral but it is intended to be factual. We wrote this article to draw the line in the sand in California in the event there is any effort to impose the use of the AMA Guides 6th Edition on our workers’ compensation system. Fortunately, the prior management of the DWC articulated that there is no intention to ever adopt the 6th Edition in California but regimes change and memories fade when it comes to political decision making.

On June 28, 2011, Illinois Republican Governor Pat Quinn signed into law a workers’ compensation reform package that adopts use of the AMA Guides to the Evaluation of Permanent Impairment 6th Edition.

The Illinois legislation requires that “arbitrators” (which is how workers’ compensation judges are referred to in Illinois) take into consideration five factors to determine the amount of permanent disability awarded in work related injury cases – “(i) the level of impairment based on the 6th Edition of the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.” See Illinois Statutes, Section 109.01, Sec.8.1b.

The workers’ compensation reforms in Illinois were born from echoes of those that occurred in California under SB 899 in 2004 but with a twist. Our friends in the workers’ compensation community in Illinois now get to look forward to precisely the same litigation the same community has experienced in California over how a permanent disability rating is determined. We are still in the throes of litigation seven years after our reforms took place, with no end in sight. Does Illinois’ adoption of the 6th Edition of the AMA Guides signal a national movement to do so in every state? Can California be next?

Ever since the 6th Edition of the AMA Guides was published for the first time in December 2008 (the 5th Edition was published in November 2000), the AMA sales team has traveled worldwide to try and sell the use of the 6th Edition to any jurisdiction that could possibly use it. At the 2011 DWC Annual Educational Conference, the AMA presented its best salesmanship to the attendees on why California should switch to the use of the 6th Edition of the Guides. The audience was polite but apparently unmoved. So, apparently, was the DWC administration. Why all of the fuss over the 6th Edition? Why is there not a strong movement in California to adopt its use in our workers’ compensation system? Even the Chamber of Commerce has kept quiet on the subject so far. Maybe the 5th Edition isn’t so bad in comparison to the 6th? Only the American Insurance Association (AIA) has advocated nationwide adoption of the 6th [see “The AIA’s Positions on Workers’ Compensation Issues—Medical Costs, AMA Guides Sixth Edition, State Funds, and California’s Left Coast Litigation: Taking a Hard Look at the Ball of Confusion,” by Karen Yotis, Esq.].

The adoption of the 6th Edition of the AMA Guides in California would be a very bad idea. First of all, Labor Code section 4660(b)(1) would have to be amended by the legislature to mandate its use since that section specifically mandates use of the 5th Edition. This would clearly open the can of worms known as a reform of the Reform. The California legislature has better things to do at this point in time. It’s the medical treatment costs, stupid! Not the cost of permanent disability! Plus, no one was in the mood to update the 2005 PDRS based on more recent wage loss data, as required by section 4660 every five years so why should anyone be in a hurry to throw out the 5th and bring in the 6th?

Besides, the 6th Edition has the following facts, flaws, blemishes, shortcomings and controversies:

First, the statistics: Only 10 states mandate use of the 6th Edition in their workers’ compensation systems. Illinois is the latest. Eleven states mandate use of the 5th Edition, including California. Eight states mandate use of the 4th Edition. Two states use the 3rd Edition Revised. Eighteen states use their own PD schedule independent of any of the Guides (but 15 of them use the Guides as a resource to be consulted).

Each successive edition of the AMA Guides reduces WPI ratings with no explanation. The current versions of the AMA Guides are edited by occupational medicine specialists who give the ratings their own values without explaining the basis of a rating and how it was determined. If you are cynical like I am (my undergrad training was in research design), like the 5th Edition, the 6th is “consensus derived” which means a bunch of insurance company physicians along with a large group of defense attorneys met and determined the impairment ratings.

Perhaps a less cynical statement is that the term “consensus derived” means that the WPI ratings (in all of the versions of the Guides) are not based on any empirical scientific data or epidemiological studies. The WPI ratings, in short, are not based on any research and have not been replicated by national peer reviewed standards. The term “consensus derived” also means that the authors and editors never mention a “minority view” on how something should be rated, if at all.

The best example is the ability to rate pain. Rumor has it that for both the 5th and 6th Editions, some contributors to the Guides had proposed a framework for specifically rating pain and totally revising Chapter 18 of the 5th Edition to include a WPI rating table for pain that is supported by objective evidence.

The ultimate products did not include those rating tables because, allegedly, there was no consensus on how to apply them. Read between the lines – adding a Table that rates pain would have increased benefits to people whose cases fall within the use of the Guides which would have increased costs to the payer communities. This is just another example of the politics of medicine. Will any version of the AMA Guides ever have a WPI pain table? It is not a question of they can’t. It is a question of they won’t.

The 6th Edition of the Guides brought a complete paradigm shift from the AMA’s prior editions. The entire rubric for determining WPI ratings are radically different from even the most recent prior 5th Edition. The 6th Edition contains five possible ratings for each listed medical condition, all DRE based. The ROM method is gone. Why? Because, generally, WPI ratings are higher using the ROM method because the physician is required to take into account a whole bunch of stuff - loss of motion, a diagnosis based WPI rating and neurological deficits (sensory and motor) while a DRE rating is, merely, a DRE rating. The 6th Edition requires a physician to pigeonhole a WPI rating based on one of five ratings – a default plus or minus 1% or 2% WPI for pain or improvement in ADL functioning. That is it. A 5% WPI range for every single rating. It is so simple, any physician can check one of five boxes. It’s so easy, a caveman could do it.

The 6th Edition uses a new definition of what constitutes an ADL. Recall that the 5th Edition uses a consensus derived ADL list that was vetted by the editorial board who wrote the 5th Edition and the best ADL list is the one on page 4, Table 1-2 that we religiously use in California. Without any scientifically based explanation, the editors now are using the World Health Organization’s definition of ADLs. Why? Because the AMA wants to sell its books in Europe! Here, again, there is no empirical data to support any change in what constitutes an ADL. In fact, the WHO’s 1999 definitions of “impairment” and “disability” are listed on page 3 of the 5th Edition alongside the adopted definition listed in Table 1-2 on page 4. Nothing is mentioned in the text in the 5th Edition why the editorial board of the AMA in adopting Table 1-2 had rejected the WHO version of what constitutes an ADL. Somehow, the WHO’s version got resurrected and adopted for the 6th Edition without any explanation of why Table 1-2 was rejected for the 6th.

A rather disturbing fact is that the 6th Edition lowers impairment ratings for heart disease and hypertension, despite the comments made in the text of the 5th Edition that says how serious and disabling heart disease and hypertension can be. See the text on page 35 and Table 3-6a on page 36. The editors of the 6th Edition lowered the WPI ratings for heart disease and hypertension without any scientific basis or explanation.

The implication of the 6th Edition is that the editors have articulated that if a medical condition is not listed in the 6th Edition then the WPI rating is 0%. This is an offshoot of the fact that the senior editors of the Guides have previously stated publically that 80% of medical reports written using the AMA Guides 5th Edition was “inaccurate.” By its inventing that self-serving statistic, some of the same editors created a cottage industry to write their own reports that criticize and “rebut” the reports written by physicians who actually examined the injured workers.  What a great business model. You write a book that you call a “national standard” even though there isn’t any such thing and then you charge the payer community a fee to write critiques of real physicians who treat and evaluate injured workers within the framework of a state’s workers’ compensation system. Something is wrong with this rubric.

We have read all versions of the AMA Guides and the AMA should be given an “A” for effort. But to this date and through six editions of its publication, we are still baffled about how a given percentage of impairment truly reflects the effect of an impairment on ADL functioning, let alone work functioning. The biggest irony of the AMA Guides is that in each edition, the authors caution us not to use the Guides as stand-alone measures of work disability. But that is precisely what the editors of this publication want – one version or another of the Guides is used in 45 states’ workers’ compensation systems, with Illinois as the 45th.

Some neutral body, such as the Institute of Medicine, should be commissioned by Congress to develop a scientific, evidence based disability rating schedule from epidemiologic studies if possible. The ones used by the Department of Defense, the Veterans Administration and to a certain degree, the Social Security Administration come to mind. These systems of disability determination are based on permanent objective medical findings and include realistic estimates of the effects of injuries and treatment on work functioning where there is some correlation between a given WPI or disability rating standard and the actual effect on a person’s future earning capacity. Such a schedule should include medical specialists and vocational experts and keep occupational medicine out of the primary development process.

That’s because of the philosophy of occupational medicine – the hallmark is to return injured workers to work as soon as possible as MMI. These are the front line physicians for most industrial injuries and who treat and release injured workers back to work as a matter of course. The determination of permanent impairment is anathema to their work as occupational physicians. Medical specialists such as orthopedic surgeons, neurologists, neurosurgeons, internists, pulmonary specialists and the host of other medical specialties are the most qualified and experienced to determine permanent impairment ratings, with the proper training under a neutral roof.

Meanwhile, Illinois is stuck with the 6th. Too bad for injured workers – the WPI ratings will be very low and unrealistic to reflect true work disabilities unless case law evolves to mandate realistic utilization of the other 4 factors to be considered in a permanent disability rating under the new Illinois law. It will be interesting to follow Illinois. Perhaps we can send them Almaraz-Guzman II, Ogilvie, and maybe even Blackledge. Those would be a good start for them. In California, there is no room for the 6th. We don’t want a system that merely fits a square peg into a square hole.

The 6th Edition of the Guides attempts to remove a physician’s own experience, knowledge, training, skills and abilities to determine a person’s physical limitations at home and in the workplace. These “guides” create an anachronism between what should be empirical and meaningful values with a one-size-fits-all simplistic approach. Let’s hope that the 6th won’t sneak into our own workers’ compensation system. It could mean the end of your jobs, both applicant and defense.

© Copyright 2011 Robert G. Rassp, Esq. All rights reserved. Reprinted with permission.

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