The American Medical Association’s Guides to the Evaluation of Permanent Impairment has now been published in six editions, the latest, sixth edition, having been released in 2007.  Those who practice under the LHWCA (33 U.S.C.S. § 901 et seq.) are curious as to what role this latest edition might play in their cases and how it might affect the outcomes of rating disability.

One should be clear, however, that the mandatory use of the Guides is limited under the Act.  There are only two claims that require the use of the Guides.  The two are (1) Section 8(c)(13) (33 U.S.C.S. § 908(c)(13)) that requires its use to assess hearing loss claims and (2) Section 10(c)(23) (33 U.S.C.S. § 910(c)(23)), which has as its subject occupational disease, mandates use of the Guides.

Yet the application of the Guides, even if voluntary, has become central to rating scheduled injuries even though case law is clear that the fact finder is not bound to accept the Guides as the only rating system.  Decisions have upheld a judge’s determination not to follow the AMA Guides, see e.g., Fisher v. Stachan Shipping Co., 8 BRBS 578 (1978), Mazze v. Frank J. Holleran, Inc., 9 BRBS 1053 (1978), and Grispino v. General Dynamics, 29 BRBS 777(ALJ) (1995). [Access the three cited cases here]

The fifth edition has been in use since 2000.  While there were questions raised as to the need for the fifth edition, it has been widely employed in state workers’ compensation systems in this country as well as outside the .  Its acceptance and general lack of criticism raised questions as to why a new edition was needed and exactly who was behind the idea of a significant change in the basis of rating impairment, given that only seven years had passed since the fifth edition’s emergence.

The States of Iowa, Vermont, Nevada and Kentucky have officially rejected the use of the sixth edition.  Tennessee has accepted it but is now voicing second thoughts.  Hawaii has not accepted its use and has an active lobbying effort to oppose it.  New York has engaged in hearings and has not accepted its use.  Only a handful of jurisdictions have officially embraced the sixth edition.  It is under close scrutiny by a number of official agencies.

The American Bar Association has formed a task force on the latest edition and is surveying the various states to make a recommendation.  While not being able to confirm officially, it appears that the U.S. Department of Labor’s OALJ chief judge John Vittone is on that task force.

Iowa’s Workers’ Compensation Commissioner convened a task force to examine the benefits of adopting the sixth edition in May of 2008.  That task force included members with different interests in the workers’ compensation industry and took testimony from various witnesses before deciding that it was not ready to recommend the adoption of the sixth edition.  It had numerous concerns.  It was concerned with the composition of the groups that composed the various chapters of the Guides.  It asked the AMA to specify the contributing editors to the various chapters.  The AMA did not do so.

The Iowa group found that there was a problem in delineating a rating of impairment and the concept of disability in the language it found in the sixth edition.  The task force also thought that the sixth edition did not reflect any recognition of ethnicity in rating for impairment. One more concern was the complexity of methodology that was required by the sixth edition.

Another critic of this version of the Guides is Professor John Burton.  Professor Burton is a long time lecturer and writer on many workers’ compensation issues.  He said, “My concern about the AMA guide (6th)…is that it’s simply not evidence-based.  It’s ignoring the evidence that’s available to do it right….”

Finally, a number of reviewing groups were disappointed to find out that the senior contributing editor of the sixth edition operates a substantial private business that both performs impairment evaluations and reviews ratings from other evaluators.

It therefore should not be a surprise that the U. S. Department of Labor has not adopted the use of the sixth edition and as of this date has not announced any plans to do so.  It appears that the use of the fifth edition or other alternatives is considered adequate.

© Copyright 2009 LexisNexis. All rights reserved. This article, which was written by Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California, is scheduled to be appear in an upcoming release of the Benefits Review Board Service Longshore Reporter.