At the 2019 IAIABC Annual Convention, a session discussed the challenges and controversy around the use of the AMA Guidelines to the Evaluation of Permanent Impairment. This was a live “Out Front Ideas with Kimberly and Mark” session moderated by Kimberly George from Sedgwick and Mark Walls from Safety National. Their guests were:
- Abbie Hudgens – Tennessee Bureau of Workers’ Compensation
- Judge David Torrey – Pennsylvania Department of Labor
- Dave Sosnow – American Medical Association
The American Medical Association workers with physicians around the country to develop the Impairment guidelines, which are used by most states in their workers’ compensation systems. The guidelines are also utilized in some other settings such as on some STD/LTD settings but their primary purpose is for workers’ compensation. The 6th edition of the AMA Guidelines was published in December 2007. Some states adopted the 6th edition immediately, and others have switched to this over time. However, there are many states that still use several of the earlier additions of the Guidelines for impairment.
The AMA guidelines are developed using the best practices and standards in medicine. Insurance carriers, regulators, and employers are not involved in their development, just physicians working with the AMA. Some have raised concern that the Guidelines are biased against injured workers but this is a myth. There is no bias in the development of the guidelines, only medical science.
There has been litigation around the country over the use of the AMA 6th edition. Much of this has been driven by the fact that the 6th edition can produce lower ratings than some of the prior editions for the same conditions. Plaintiff attorneys around the country have been looking for opportunities to challenge the constitutionality of the 6th edition for a number of reasons.
In Pennsylvania, the litigation focused on the fact that the workers’ compensation statutes automatically utilized the “most current edition” of the AMA Guidelines. Ultimately the Pennsylvania Supreme Court ruled that requiring the “most current edition” was an unlawful delegation of legislative duties and they found that statutory language unconstitutional. Since that time, Pennsylvania has passed new legislation specifically requiring use of the AMA 6th edition of the Guidelines and this new legislation has survived it’s first constitutional challenge.
In Kansas, there were two cases that challenged the 6th edition. These cases focused on the “fairness” of the guidelines. The courts ruled that lower impairment ratings undermined the “grand bargain” of workers’ compensation to the point where it was unconstitutional. It is expected that the Kansas legislature will roll back to an earlier version of the AMA Guidelines in their statutes.
One big reason for all the litigation around the AMA Guidelines is how the states are using them. These Guidelines are designed to measure objective physical impairment. However, they are not designed to measure “disability” which may include factors such as loss of wage earning capacity or access to the labor market. Many states try to use the impairment rating under the AMA Guidelines for the broader measurement of “disability” which is not what they are designed to do. If states want to give awards for Permanent Partial Disability that contemplate both “impairment” and “disability” then they need to consider using the AMA Guidelines as part of that evaluation, not the only tool.
Another challenge around the guidelines is that they are complex. Most physicians do not fully understand them and they apply them improperly when completing impairment evaluations. Even though the AMA and the states conducts extensive training on the guidelines there are few physicians that use them correctly on a consistent basis. This inconsistency can lead to litigation when there are multiple physicians coming up with different ratings for the same person.
Although it has been several years since the 6th edition was published, the AMA has no plans to publish a 7th edition at this time. There are already multiple versions of the Guidelines in use around the country, and adding another Guideline would just add to the confusion. Instead, the AMA is looking to adopt some minor updates to certain sections of the Guidelines where they feel there is a need based on user experience. These updates will be rolled out as needed and the changes will be publicized.