In Pennsylvania workers’ comp, as in workers’ compensation systems throughout the U.S., the American Medical Association’s Guides to the Evaluation of Permanent Impairment is being used to assess disability. In other words, an injured worker’s condition and ability to work is being determined by referencing a book, distancing any subjectivity at all. The Guides are now in the Sixth Edition (some States use a specific edition of the Guides, while others, like PA, use the most recent edition).
As discussed in a previous blog entry, PA has a ridiculously high standard to maintain total disability. In Pennsylvania, an injured worker can be deemed only “partially disabled” if they do not reach 50% “whole body impairment.” For point of comparison, as an example, a “very severe,” “approaching total functional loss,” of the cervical spine can reach a maximum whole body impairment of 30%. For the lumbar spine, the whole body impairment can be as high as 33%. Obviously, a devastating injury to the neck or low back, by these figures, will fall short of 50%. It is completely unrealistic, and just plain mean spirited, however, to suggest that an injured worker with this degree of impairment is capable of employment.
Fortunately, the debate is living on, at least on the Federal level. On November 17, 2010, testimony was given by Emily A. Spieler, J.D., Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston, Massachusetts, before the Subcommittee on Workforce Protections Committee on Education and Labor in the
U.S. House of Representatives. In her presentation, Ms. Spieler, who had a role in the drafting of previous edition of the Guides, touched on the limitations in using the Guides for determining “disability” (which, of course, is completely different from “impairment”).
While the 50% “whole body impairment” threshold still exists in Pennsylvania workers’ comp, the Sixth Edition of the AMA Guides makes meeting this absurd standard even more difficult for an injured worker in PA. Just looking at musculoskeletal injuries, which comprise the majority of PA workers’ compensation cases, Ms. Spieler observed:
“Probably the most significant changes are the elimination of the Range of Motion assessment and the pain addon. In addition, cases involving surgical intervention are all substantially reduced in terms of WPI. These include spinal fusion (reduced from 24% to 15% WPI), ankle replacement with poor result (30% to 24% WPI), total knee replacement (from 20% to 15% WPI) and hip fracture (from 25% to 12% WPI).”
Her testimony addresses many of the issues and reasons why the Guide, at least as it stands now, should not be used to determine disability. As always, we, the injured workers, and potential injured workers in PA, must rely on the Pennsylvania Legislature to do the right thing, to make the Pennsylvania Workers’ Compensation Act the law protecting injured workers, as it was designed to serve.