Justice is elusive, particularly in workers' compensation law where it is measured by the pound.  Under the Longshore and Harbor Workers Compensation Act (33 U.S.C.S. § 901 et seq.), as in many workers' compensation acts, awards for partial disability are determined not by the impact of the injury on the worker but by "loss of use of" parts of the body.  While the logic underlying this is strained, it is deeply ingrained in the law. What is less clear is what this simple phrase means, how it is defined, and what political compromises are involved in the definition.

These deeper issues were addressed in the case of Hodgkinson v. Electric Boat Corp., 35 BRBS 459(ALJ).  Mr. Hodgkinson is a 36-year-old grinder whose work with vibrating air tools caused damage to his hand and arms. He experiences numbness, tingling, and aching in both hands. Cold weather bothers him, and he has difficulty holding onto objects such as pens or tools. After his injury, he has been retrained and now works in the HVAC industry.  Since he is not totally disabled and since his injury affects his arms, under Potomac Electric Power Co. v. Director, OWCP, 606 F.2d 1324, 10 BRBS 1048 (D.C. Cir. 1979), rev'd, 449 U.S. 268, 14 BRBS 363 (1980), his award must be based on his loss of use of the arms.  However, when asked to rate that loss of function, the medical profession gave widely different answers.

Dr. Browning, the attending physician, assigned a rating of 43 percent impairment of the master hand and 40 percent impairment of the left hand.  Dr. Wainright rated the loss of use at 10 percent impairment of each hand. Dr. Willetts rated the loss at 11 percent impairment of the hands. Dr. Jones assigned a rating of 3 percent impairment of the hands.

What makes the case interesting is the explanation the doctors gave for how they reached their opinions. Dr. Browning's opinion was based on a broad evaluation of the pathological damage vibration had caused to Mr. Hodgkinson and took into consideration the effect the injury had upon him.  Doctors Wainright and Willetts primarily applied the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition. Interestingly, Dr. Jones also applied the Guides, but claimed special expertise since he was the Chairman of the AMA Committee developing the Upper Extremity Chapter of the Fifth Edition of the Guides.

The employer asserted that the rating for "loss of use" of the hand should be based on the Guides since it reputedly wears the mantel of the scientific method and is peer reviewed. In effect the Guides were put on trial, and they lost.

Dr. Jones forthrightly admitted that the Guides are developed as part of a "very politicized process" in which "we have to try to satisfy as many different constituencies, you know, it is not just a Doctor thing". Dr. Jones testified the "AMA Guides have been criticized because they are not scientific.  That is, you can't refer to a scientific study that says a finger is worth a certain percent of the body as a whole. And that's right; there isn't any science about it. It is a consensus document". Dr. Jones went on to explain that the consensus is not even based on scientific or medical principles, and instead is a political document, which seeks to compromise the interests of unions, and employers and lawyers." The primary value of the Guides, the doctor explained, is that if not accurate, it is consistent, so that a doctor applying it in say Minnesota will make the same politically based errors as a doctor in another state.

It is not surprising that the Guides are a political document based on economic concerns rather than ethical or scientific considerations. The function of the hand is after all not a scientific question. The hand of a lawyer serves a different function than the hand of a violinist. Judge Di Nardi adopted the rating of Dr. Browning, noting that the Longshore Act does not require adherence to any particular rating guide. Indeed the Longshore Act does not even base its awards on "impairment", and instead requires that the Judge look at all the evidence of the impact the injury has had on the individual worker.

What is interesting is that the ghost of Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993)) has come to haunt our jurisprudence so strikingly. Science is a useful tool for helping us to understand many facets of natural life, but it ultimately has its limits both as a method and as a philosophy. It can assist us in understanding how nerves transmit heat, pressure, and feeling to the brain, but it cannot define the function of the hand or the aesthetic of feeling. It cannot define justice.

The politics of the rating system bear observation for it is a scientific fact that powerful forces are promoting the universal use of the Guides, and encouraging their frequent modification with a progressive lowering of impairment ratings.  The Fifth Edition of the Guides has been recently published, and not too surprisingly it has significantly reduced the ratings for carpal tunnel syndrome and hand arm vibration syndrome. The solution, of course, is to promote a safer work place to reduce such injuries.  However, the first act of the new administration was to revoke OSHA's ergonomics rules, ostensibly because of doubts about their science.

© Copyright 2001 LexisNexis. This article by Stephen C. Embry, Embry and Neusner, Groton, Connecticut, originally appeared in the Benefits Review Board Service Longshore Reporter (LexisNexis).