In a case under consideration for several months and for which post-trial briefing was requested in October 2008, the Delaware Industrial Accident Board finally ruled that there will be no blanket pronouncement on the  use of the 5th versus the 6th Edition of the AMA Guides for the Evaluation of Permanent Impairment.  In Narbor Santos v. Citisteel, USA, IAB Hearing # 1301901 (2/26/09), Dr. Stephen Rodgers testified that the claimant sustained a 10% permanency to his right leg as the result of the cumulative detrimental effect of his work as a metal technician.  He utilized the 5th Edition of the Guides and declined to consider the 6th Edition because in his clinical judgment the 5th Edition was more accurate.  Dr. Andrew Gelman, the defense medical expert, testified as to a 1% permanency in reliance of the 6th Edition of the Guides.

Hearing Officer Deborah Massaro authored this decision.  She concluded that in the absence of any case authority or mandate as to which version of the Guides is preferred,  the Board could mandate which version of the Guides be adopted, commenting that "nothing in Delaware law even requires that the Guides be utilized for permanency ratings, let alone any specific edition of the Guides."  The decision further explains that the mere fact that a physician relies on an older version of the Guides will not be a basis to reject his testimony and that the Board will evaluate medical testimony on the issue of impairment on a case-by-case basis with scrutiny of the doctor's professional judgment and allowing for thorough cross-examination as to the basis of each expert's opinion.

In this particular case, permanency was awarded based on the rating of Dr. Rodgers relying on the 5th Edition of the Guide.  The Hearing Officer was careful to state that the version of the Guide utilized did not impact her decision.

Bottom line:  It does not appear that there will be any blanket directive from the Board on the use of the Guides in terms of 5th versus 6th Edition.  Permanency will be awarded based on which doctor is more credible in explaining the basis of his impairment rating.

The attorneys involved were Gary Nitsche, Esquire for the claimant and Christopher Logullo, Esquire on behalf of Liberty Mutual.

Postscript:  In reviewing subsequent case decisions, it would appear that the preferred Edition for evaluating permanency impairment under 19 Delaware Code Section 2326 remains the 5th Edition and that few doctors, even those testifying for the employer, are utilizing the 6th Edition of the Guide.  It remains to be seen whether as clinicians become familiar with the more recent Edition there will be greater reliance on the 6th as a basis for Section 2326 ratings.

Read Narbor Santos v. Citisteel, USA, here