The decisions from the Delaware Industrial Accident Board are trickling in,  following a previous blog posting (7/2/09) that discussed the Narbor Santos v. Citisteel case, the one in which the Board declined to adopt either the 6th Edition or the 5th Edition of the AMA Guide as their "gold standard" for evaluating permanent impairment under 19 Del. Code Section 2326.  The proposition taken from Santos was that the Board would consider the issue of permanency on a case-by-case basis with regard for the credibility of the medical expert's explanation as to which Edition of the Guide he used to develop his rating and why that Edition should apply.  To date, has the Board applied its scrutiny based on the unique facts and medicine of each case, or has there been a "rubber stamp" in favor of the more generous application of the 5th Edition?

In the opinion of this author, the Board is taking a hard look at each case and allowing for application of the more conservative recovery under the 6th Edition when the circumstances would so merit.  Consider the following cases, examined in brief:

• Kenneth Mode v. Valmont Structures, IAB Hearing # 1281396  (8/10/09) In this case the claimant sought an award of  33% impairment to the lumbar spine based on the rating of Dr. Stephen Rodgers who developed his numbers based on the AMA 5th.  The defense medical expert, Dr. Andrew Gelman, opined in favor of a 19% rating based on the 6th Edition, commenting that he would not place the claimant in the DRE Category V under the 5th Edition of the Guides given the lack of atrophy, loss of reflexes, or significant sensory changes.  In addition, the claimant's condition paralleled Example 17-14 in the AMA 6th, which detailed a rating of 19%.  Claimant's expert did not dispute that 19% would be the appropriate rating if the 6th Edition were utilized.  The Board awarded the 19% impairment, based on the "claimant's condition and level of function."
• Charles Walls v. David G. Horsey & Sons, Inc., IAB Hearing # 1289219 (8/28/09) The discrepancy in this case was the claimant's alleged entitlement to 35% lumbar impairment based on the 5th Edition of the Guide versus a defense rating of 19% to the lumbar spine based on the 6th Edition.  Once again, Dr. Stephen Rodgers offered a rating for the claimant; Dr. Lawrence Piccioni performed the defense medical evaluation.  With no dispute that each physician selected the appropriate class of impairment for the claimant based on the Edition of the Guide they selected, the issue came down to whether the Board should navigate the issue by way of the 5th or the 6th Edition.  Taking into account the claimant's excellent result from surgery and level of function, the Board awarded 19% to the lumbar spine based on the 6th Edition of the AMA Guide.  Cited as a compelling factor in the decision was the fact that claimant participated in an FCE and was able to work in a medium duty capacity and engage in recreational and sports activity even before he completed a program of work hardening.  Moreover, Dr. Rodgers had testified that a patient with a "terrible outcome" following surgery who was unable to work or engage in any level of physical activity would merit a 37% rating under the AMA 5th.
• Margie Massey v. Cardinal Health, IAB Hearing # 1328853 (8/27/09)  This is a case of what happens when the AMA 5th would yield an inflated recovery and the 6th a recovery deemed inadequate?  Allowing for some creative thinking on the part of defense counsel and his medical expert to build the potential for something other than an "all of nothing result", we have a claim for 35% to the cervical spine based on the opinion of Dr. Stephen Rodgers (again) citing to the AMA Guide 5th Edition.  Testifying for the employer was Dr. John Townsend who concluded that if the AMA 6th were applied, claimant demonstrated a 12% permanency and if the 5th were the standard, he would concur with the 35% rating.  Taking the analysis a step further, however, he explained that this individual might best fit in between the two Guides in terms of her level of function.  Dr. Townsend opined in favor of placement in the range of a 20% to 25% impairment "as being a reasonable representation of what was lost in surgery and reflective of Claimant's ongoing complaints and limitations based on both Guides and his own experience and clinical judgment."  The Board endorsed this opinion and awarded a 25% impairment.

While there are still many more recoveries in permanency to date based on the AMA Guide 5th in the observation of this author, the decisions outlined above suggest that the Board is not inclined to adopt a unilateral rule of preference for the 5th Edition.  To the contrary, the Board has been cautious to safeguard against rulings that would yield an inflated result where the claimant has an excellent outcome post-accident or post-surgery and is seeking a high percentage of impairment that may not be consistent with the current level of function.  The Board has followed the directive that it established for itself in the Narbor Santos case to evaluate the medical testimony closely as to the reasoning behind the selection of the Guides in each particular case and when a defense medical expert, for example, can articulate why the AMA Guide 5th would yield an inflated recovery, it appears that the Board will award based on the 6th.  That said, and in the opinion of this humble IAB litigator, however, if a rule were to be gleaned, it would be that the rebuttable presumption is still somewhat in favor of the 5th Edition, noting that the 5th is reportedly the more generous standard in a jurisdiction that is considered by many to be claimant-friendly. [Is that not said by all jurisdictions about themselves?]

Stay posted for continuing developments on this important issue as other decisions are released by our Board.