Practitioners Explain Strong Objections to Using Guides 6th Edition
By Elizabeth A. Morrow, Esq., cyber FEDS® Special Projects Editor
ASK THE EXPERT: Schedule award compensation — that is, compensation for the permanent impairment of a scheduled member or function due to a workplace injury — is one of the benefits available under the Federal Employees’ Compensation Act. See 5 USC 8107. However, as neither the FECA nor federal regulations specify how to calculate the degree of permanent impairment, the Office of Workers’ Compensation Programs adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment as the standard for evaluating scheduled losses. The sixth edition of the Guides, which applies to decisions issued by the OWCP on or after May 1, 2009, has generated significant controversy since its adoption.
cyber FEDS® asked Daniel Goodkin, Steven Brown, and Daniel B. Shapiro, attorneys who represent claimants in federal workers’ compensation cases, to explain why practitioners dislike the sixth edition and would like to see it abolished.
Q. Describe the basic differences between the fifth and sixth edition of the Guides.
Shapiro: Prior to the sixth edition, impairment was based on functional assessment. The sixth edition reflects a dramatic shift and bases impairment on the claimant’s diagnosis, rather than functional assessment. The major reason for the change was financial, in that many from the insurance, business, and financial communities thought a diagnosis-based assessment could be sold as a more objective approach and could be advertised as minimizing abuse. It was another example of the business, insurance, financial, and medical communities attempting to legislate for the exception rather than the rule and using that as a basis for devising the system that would diminish impairment ratings and therefore diminish dollar payouts. For an excellent summary of the history and evolution of impairment ratings, I recommend reading Dean Emily Spieler’s 2010 testimony before the Subcommittee on Workforce Protections of the Committee on Education and Labor.
Goodkin/Brown: The current version of the Guides was edited by occupational medicine specialists who gave the ratings their own values without explaining the basis of a rating and how it was determined. The sixth edition is “consensus derived,” which means insurance company physicians, along with a large group of defense attorneys, met and determined the impairment ratings. The term “consensus derived” means that ratings are not based on any empirical scientific data or epidemiological studies. The ratings, in short, are not based on any research and have not been replicated by national peer-reviewed standards. It also means that the authors and editors never mention a “minority view” on how something should be rated, if at all.
Q. Why are there so many objections to the approach used in the sixth edition?
Shapiro: All workers’ comp practitioners want to see the fifth edition of the Guides back in play because the basis for determining impairment was governed by what historically had been the most reliable approach — the functional assessment of an individual claimant. By individualizing impairment ratings through a personal functional assessment, the ratings are more accurate and generally are higher because it is not a one-size-fits-all approach.
Goodkin/Brown: Virtually every rating is significantly lower under the sixth edition based on the “consensus” of some unknown group of physicians. Doctors tell us the sixth edition is extremely difficult to understand and use. Many doctors in California and the other 39 states that have not adopted the sixth edition have refused to write reports using the sixth edition, calling it “illegal,” “voodoo science,” or “useless.” We have seen a substantial increase in disagreements between treating doctors and OWCP doctors with regard to ratings ever since the sixth edition was adopted. Under the fifth edition, the district medical adviser and primary treating physician often agreed on ratings. Now it is rare that they are in agreement.
Q. Describe the efforts being made to abolish use of the sixth edition, and why you think these efforts will or will not be successful.
Goodkin/Brown: The sixth edition has been challenged successfully in most states. As of 2011, only 10 states had adopted the sixth edition for state workers’ comp. The OWCP adopted the sixth edition without any vetting, hearings, or attempts to address the concerns and criticisms that have been heaped upon the Guides by medical and other professionals. However, given the current climate in Washington D.C., it will be challenging to secure more money for this effort, no matter how unfair the sixth edition is to injured federal workers.
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