WCLA MCLE 8-10-11
• AMA Guides: Section 8.1b, Fundamentals &
Case Study
• Wednesday August 10, 2011 from 11:45 am to
1:15 pm
• Dr. David Fetter, M.D.
• James R. Thompson Center Auditorium,
Chicago, IL
• 1.5 Hours General MCLE Credit
PA97-0276
Added to Section 5
(effective immediately 8-8-11)
•
Notwithstanding any other defense, accidental injuries incurred while the
employee is engaged in the active commission of and as a proximate result of the
active commission of (a) a forcible felony, (b) aggravated driving under the
influence of alcohol, other drug or drugs, or intoxicating compound or compounds,
or any combination thereof, or (c) reckless homicide and for which the employee
was convicted do not arise out of and in the course of employment if the
commission of that forcible felony, aggravated driving under the influence, or
reckless homicide caused an accident resulting in the death or severe injury of
another person. If an employee is acquitted of a forcible felony, aggravated driving
under the influence, or reckless homicide that caused an accident resulting in the
death or severe injury of another person or if these charges are dismissed, there
shall be no presumption that the employee is eligible for benefits under this Act.
No employee shall be entitled to additional compensation under Sections 19(k) or
19(l) of this Act or attorney's fees under Section 16 of this Act when the employee
has been charged with a forcible felony, aggravated driving under the influence, or
reckless homicide that caused an accident resulting in the death or severe injury of
another person and the employer terminates benefits or refuses to pay benefits to
the employee until the termination of any pending criminal proceedings.
New Section 8.1b
820 ILCS 305/8.1b
•
Sec. 8.1b. Determination of permanent partial disability. For accidental injuries that occur on
or after September 1, 2011, permanent partial disability shall be established using the
following criteria: (a) A physician licensed to practice medicine in all of its branches
preparing a permanent partial disability impairment report shall report the level of
impairment in writing. The report shall include an evaluation of medically defined and
professionally appropriate measurements of impairment that include, but are not limited to:
loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the
injury; and any other measurements that establish the nature and extent of the impairment.
The most current edition of the American Medical Association's "Guides to the Evaluation of
Permanent Impairment" shall be used by the physician in determining the level of
impairment. (b) In determining the level of permanent partial disability, the Commission
shall base its determination on the following factors: (i) the reported level of impairment
pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the
employee at the time of the injury; (iv) the employee's future earning capacity; and (v)
evidence of disability corroborated by the treating medical records. No single enumerated
factor shall be the sole determinant of disability. In determining the level of disability, the
relevance and weight of any factors used in addition to the level of impairment as reported
by the physician must be explained in a written order.
Title & Applicability Date
• Sec. 8.1b. Determination of permanent partial disability. For accidental
injuries that occur on or after September 1, 2011, permanent partial
disability shall be established using the following criteria:…
• “Guides to the Evaluation of Permanent IMPAIRMENT”
• Guides: “The relationship between impairment and disability remains
both complex and difficult, if not impossible to predict…In disability
evaluation, the impairment rating is one of several determinants of
disablement.” (pgs. 5 & 6).
• “For purposes of the Guides, the following operational definitions and
disclaimer apply: Impairment: a significant deviation, loss, or loss of use of
any body structure or body function in an individual with a health
condition, disorder or disease; Disability: activity limitations and/or
participation restrictions in an individual with a health condition, disorder,
or disease.” (pg.5)
Physician
•
•
•
•
•
•
(a) A physician licensed to practice medicine in all of its branches preparing a permanent
partial disability impairment report shall report the level of impairment in writing.
“A physician”; Not all physicians, not every physician; not treating physicians.
Guides: “Although treating physicians may perform impairment ratings on their patients, it is
recognized that these are not independent and may be subject to greater scrutiny…requires
expertise and judgment.” (pg. 23)
Medical Practice Act of 1987: “10. ‘Physician’ means a person licensed under the Medical
Practice Act to practice medicine in all of its branches or a chiropractic physician licensed to
treat human ailments without the use of drugs and without operative surgery.” 225 ILCS
60/2.
“In the current version of the Medical Practice Act of 1987, the legislature's definition of
‘physician’ expressly includes both medical doctors and chiropractors, describing a
‘physician’ as ‘a person licensed to practice medicine in all of its branches or a chiropractic
physician licensed to treat human ailments without the use of drugs and without operative
surgery’.” Montes v. Mai, 398 Ill.App.3d 424 (2010).
Strunk & White: “The position of the words in a sentence is the principal means of showing
their relationship… Modifiers should come, if possible next to the word they modify.” This is
an IMPAIRMENT report.
Impairment Report
• The report shall include an evaluation of medically defined and
professionally appropriate measurements of impairment that include, but
are not limited to: loss of range of motion; loss of strength; measured
atrophy of tissue mass consistent with the injury; and any other
measurements that establish the nature and extent of the impairment.
The most current edition of the American Medical Association's "Guides
to the Evaluation of Permanent Impairment" shall be used by the
physician in determining the level of impairment.
• Notice legislatures’s distinction between impairment vs. disability
• “Loss of range of motion”? Is this in Guides?
• “Any other measurements that establish nature & extent”? Does “any
other” include measurements not in Guides? Must evaluator go outside of
Guides to comply with this requirement?
• “Most current” is 6th Edition, Second printing
Factors
• (b) In determining the level of permanent
partial disability, the Commission shall base
its determination on the following factors:
• Notice legislature’s distinction between
impairment and disability
• Notice seemingly mandatory language: “shall
base”
• Notice use of word “factors”: one of five
elements in ultimate determination of PPD
Factors
Impairment
• “(i) the reported level of impairment pursuant to subsection
(a)”
• What if no “reported” impairment? Guides cannot be
considered: decisions “shall be based exclusively on evidence
in the record.” New(?) standards of conduct.
• Must comply with paragraph (a); done under AMA Guides
• Are Impairment Reports (IR) automatically admissible? No!
Blatant hearsay at least; no exception made for IR; legislature
knows how to make things automatically admissible; See
Section 16
• Section 16: “does not apply to reports prepared by treating
providers for use in litigation.” IR’s are just this!
• Section 12? 48 hour rule?
Factors
Occupation; Age; Earning Capacity
• “(ii) the occupation of the injured employee”
When? DA or later?
• (iii) age of the employee at the time of the
injury” Why at the time of the injury? Cuts
both ways: young live with it longer; old
recover poorly
• “(iv) the employee’s future earning capacity”
Consider 8(d)1 wage differential or 8(d)2 PAW
Factors
Evidence of Disability
• “and: evidence of disability corroborated by
the treating medical records.”
• “Corroborated by”: supported by; credibility
• “Treating medical records”: who cares what
IME says about evidence of disability?
• “Evidence of disability”: PPD shall be based on
disability! Still!
• What is evidence of disability?
Factors
Evidence of Disability
• Commission decisions: “conclusions of law set out in such
decisions shall be regarded as precedents by Arbitrators”
Section 19(e)
• 81 IIC 1: “evaluate the effect of a disability on the life of the
particular worker before it. Several factors are relevant…”
• “Occupation; age; inability to engage in certain kinds of work
or activities; loss of income; skill; training; pain; stiffness;
weakness; cramps; numbness; inflammation; spasms;
limitation of motion; tenderness; atrophy; lack of
coordination; soreness; diminished reflexes; the need for
assistance devices such as braces, orthotics and glasses; the
need for medication and ongoing medical care.”
• Still a question of fact for reviewing courts
Factors
No Sole Determinant
• “No single enumerated factor shall be the sole
determinant of disability.”
• “No single”: one alone
• “enumerated”: (i) through and including (v)
• “shall be the sole”: contrary to law if violated
• “determinant”: decisive factor
• “of disability”: Still PPD! Get it yet?!
Factors
Weight
• “In determining the level of disability, the relevance and
weight of any factors used in addition to the level of
impairment as reported by the physician must be explained in
writing.”
• Notice disability v. impairment
• Notice no special weight given to any one factor (i) through (v)
• Notice relevance: irrelevant evidence in record?
• Notice weight: “ Arbitrator assigns great weight to Petitioner’s
credible complaints of pain as corroborated by the treating
medical records.”
• Written order: Decision
Is This Right?
• Compare to previous versions (See SB 1349 McCarter: (c) In
determining the level of disability, the Commission shall base their
determination on the level of impairment as certified by the
physician. The Commission may deviate from the level of
impairment only using the following additional factors…)
• “Illinois will not be a strict AMA Guides state”
• Positions of interested parties: labor, ITLA, Chamber, CAT
• No change in minimum permanency compensation (amputations,
organs etc.)
• New carpal tunnel provision: recognition that disability is different
from impairment
• NCCI: No premium reduction for this provision because, “PPD
award is based on determination of disability by the WCC using
other subjective factors.” (8.8% reduction altogether)
AMA Guides, 6th Edition
It’s Changed
Coming SOON to
Illinois Workers’ Compensation
Why are you listening to me??
• 820 ILCS 305/8.1B (NEW)
– For accidental injuries that occurs on or after
September 1, 2011, permanent partial impairment
shall be established by the following criteria:
a. A Physician licensed to practice medicine in all of its
branches preparing a permanent partial disability
report shall report the level of impairment in writing.
…. The most current edition of the American Medical
Association’s “Guides to the Evaluation of Permanent
Impairment: shall be used by the physician in
determining the level of impairment.
Why are you listening to me??
• 820 ILCS 305/8.1B (NEW)
– b. In determining the level of permanent partial
disability, the Commission shall base its
determination of the following factors:
–
–
–
–
–
(i) the reported level of impairment pursuant to subsection (a)
(ii) the occupation of the injured employee
(iii) the age of the employee at the time of the injury
(iv) the employee’s future earning capacity
(v) evidence of disability corroborated by the treating medical
records.
• In determining the level of disability, the relevance and
weight of any factors used in addition to the level of
impairment as reported by the physician must be
explained in a written order.
JAMA Feb 15, 1958
The Musculoskeletal
System
12 other “Guides”
published over the
next 12 years in
Issues of JAMA.
18
AMA Guides – Work in Progress
Gradual, Incremental Change
19
History of the AMA Guides
•
•
•
•
•
•
•
•
•
1956 - ad hoc committee
1958-1970 - 13 publications in JAMA
1971 - First Edition
1981 - established 12 expert panels
1984 - Second Edition
1988 - Third Edition
1990 - Third Edition-Revised
1993 - Fourth Edition (4 printings)
2000 – Fifth Edition (November 2000)
SAME
Methodology
Refined and
Improved
Over time
• 2007 (December) – Sixth Edition
– Radical paradigm shift
20
The Color: Purple
Date of publication
December 24, 2007
Merry Christmas
21
Axiom 1:
• The AMA Guides must adopt
the terminology and
conceptual framework of
disablement as put forward
by the International
Classification of Functioning,
Disability and Health (ICF).
(WHO, 2001)
23
We are all to some degree DISABLED ?
ICF Model is INTENDED to blur CAUSATION, so we focus on the individual’s handicap,
NOT on Causation.
24
Traditional ICIDH model (WHO, 1980)
New ICF model (WHO, 2001)
Health Condition, Disorder or
Disease
Body Functions and
Structures
Activity
Normal Variation
No Activity Limitation
Complete Impairment
Complete Activity Limitation
Participation
No Participation Restriction
Complete Participation
Restriction
Contextual Factors
Environmental
Personal
ICF Terminology
• Body functions – physiological/psychological
functions of body systems
• Body structures – anatomical parts (organs,
limbs, & components)
• Activity – execution of a task or action by an
individual
• Participation – involvement in a life situation
ICF Terminology (2)
• Impairment – problem in body function or
structure as a significant deviation/loss
• Activity limitation – difficulty an individual has
in executing an activity
• Participation restriction – problem
experienced in involvement in a life situation
AMA Guides Growth in Size
700
600
500
400
Pages
300
200
100
0
Second Third
Pages
245
254
Third
Fourth
Rev.
262
339
Fifth
Sixth
613
634
29
Sixth Edition
Length
Fifth
Edition
Fourth
Edition
Chapter
Chapter
Length
Length
Chapter
Title
1
Concepts and Philosophy
18
1
15
1
6
2
Practical Application
12
2
8
2
6
3
Pain
16
18
28
15
12
4
Cardiovascular system
30
3&4
62
6
32
5
Pulmonary system
24
5
30
5
16
6
Digestive system
28
6
26
10
14
7
Urinary & reproductive system
30
7
30
11
14
8
Skin
24
8
18
13
14
9
Hematopoietic system
30
9
22
7
8
10
Endocrine system
34
10
34
12
14
11
Ear, nose, & throat
34
11
32
9
12
12
Visual system
40
12
28
8
14
13
Central and Peripheral Nervous System
26
13
52
4
14
14
Mental and Behavioral Disorders
36
14
16
14
12
15
Upper Extremities
110
16
90
3.1
60
16
Lower Extremities
64
17
42
3.2
19
17
Spine
46
15
60
3.3
42
602
593
309
Impairment Rating Does NOT
• Determine Medical Care
• Comment on causation
• “Impairment evaluations are usually performed not to
establish academic facts or to make treatment decisions
but, rather, to establish the financial obligations of
payers to individuals, or, conversely, the entitlement of
individuals to monetary rewards.
– Guides, 5th Edition page 569
32
Impairment Rating: 6th Edition
• “… to translate objective clinical findings into a
percentage of the whole person. Typically this
number is used to measure the residual deficit, a loss
– a number that is then converted to a monetary
award to the injured party.” – page 20
• The Guides is not intended to be used for direct
estimates of work participation restrictions.
Impairment percentages derived according to the
Guides criteria do NOT directly measure work
participation restrictions.”
– Page 6, 6th Edition
– Page 13, 5th Edition
33
AMA Guides
COMPARE 5TH & 6th Editions
• “For purposes of the Guides” (6th Edition) the
following operational definitions and
disclaimers apply.” - page 5
– 6th Edition: Impairment; a significant deviation, loss,
or loss of use, of any body structure or body
function in an individual with a health condition,
disorder, or disease. – page 5
- 5th Edition: Impairment is “A loss, loss of use, or
derangement of any body part, organ system, or
organ function.”
Definitions are essentially the same
34
AMA Guides
COMPARE 5TH & 6th Editions
• “For purposes of the Guides” (6th Edition) the
following operational definitions and
disclaimers apply.” - page 5
– 6th Edition: Disability; activity limitations and/or
participation restrictions in an individual with a
health condition, disorder, or disease. – page 5
– 5th Edition: Disability; “An alteration of an
individual’s capacity to meet personal, social, or
occupational demands because of an impairment.”
Definitions are essentially the same
35
AMA Guides, 6th Edition
• Definition: Maximal Medical Improvement
– “Maximum Medical Improvement (MMI) refers to
a status where the person is as good as he/she is
going to get from the medical and surgical
treatment available to him/her. It can also be
conceptualized as a date from which further
recovery or deterioration is not anticipated,
although over time (beyond twelve months) there
may be some expected change.”
- Chapter 2.5e, page 26
Words are somewhat different, but the concept is UNCHANGED.
36
KEY POINT
• Physicians rate impairment
– Medical determination
– Medical training required (Anatomy, Physiology)
• Judges rate disability
– Judge “factors in” NON-medical factors
– In Workers’ Compensation,
the philosophical basis for the
Lump Sum cash settlement is the loss of earning
ability, and NOT “pain and suffering”.
• Doctor: “Do NOT think about the ability to do
his/her job, availability of similar jobs in the local
economy, etc., as that is the judge’s task, NOT
your task.”
37
Impairment DOES NOT equal Disability
• Example: both a lawyer and a pianist sustain
an amputation of the non-dominant little
finger.
– Both have the same impairment
• 100% of the digit, 10% of the hand,
9% of the upper extremity, 5% whole person
– The lawyer has no disability
– The pianist is unable to perform his occupation
• Totally disabled for his occupation
• Fully capable of many jobs
• Physician’s role: Determine IMPAIRMENT
38
Impairment is NOT Disability
• “In disability evaluation, the impairment
rating is ONE of several determinants of
disablement. Impairment rating is the
determinant most amenable to physician
assessment; it must be further integrated with
contextual information typically provided by
nonphysician sources regarding psychological,
social, vocational, and avocational issues.” –
page 6
Unless otherwise specified page numbers refer to the Guides, 6th
Edition
39
AMA Guides Philosophy
• Ratings reflect the severity and limitations of the
organ/body system impairment and resulting
functional limitations
• Ratings in whole person, or converted to whole
person
• 0% whole person rating
– No significant organ or body system functional
consequences
– Does not limit the performance of common activities of
daily living
• 90% - 100% whole person rating
– Very severe organ or body system impairment
– Requires the individual to be fully dependent on others
for self-care, approaching death (page 19)
40
AMA Guides, 6th Edition
Philosophy
• “Impairment rating: consensus
derived percentage estimate of loss
of activity reflecting severity for a
given health condition, and the
degree of associated limitations in
ADLs.” – page 5
–ADLs = Activities of Daily Living
41
Self- Care
Activities of Daily Living (ADLs):
•Bathing, showering
•Dressing
•Eating
•Feeding
•Functional mobility
•Personal device care
•Personal hygiene and grooming
•Sexual activity
•Sleep/rest
•Toilet hygiene
1. Conceptual Foundations and Philosophy
42
Self- Care
Instrumental Activities of Daily Living (IADLs)
•Care of others (including selecting and supervising caregivers)
•Care of pets
•Child rearing
•Communication device use
•Community mobility
•Financial management
•Health management and maintenance
•Home establishment and maintenance
•Meal preparation and cleanup
•Safety procedures and emergency responses
•Shopping
1. Conceptual Foundations and Philosophy
43
Lower Limb Chapter
Identical to Table 15-10 in the Upper Extremity
Similar to Table 17-10 in the Spine
Similar to Table 4-4 in the Cardiovascular System
Similar to Table 5-3 in the Pulmonary System
Similar to Table 6-3 in the Digestive System
Similar to Table 7-1 in the Urinary and Reproductive System
44
Etc.
Essential Elements of
Physician Assessment & Reporting:
OR
How one Doctor talks to another about a case
• What is the clinical problem (diagnosis)?
• What difficulties does the patient report
(symptoms; functional loss)?
• What are the physical examination findings?
• What are the results of clinical studies?
• These same steps are involved in rating
impairment using the 6th Edition
methodology.
Spine Example:
Steps to Determine Diagnosis-Based Impairment (DBI)
1) Perform Hx & P/E and determine MMI
2) Establish appropriate Spine diagnosis
3) Use regional “DBI grid”
(Cervical/Thoracic/Lumbar/Pelvis) to determine
Impairment Class
4) Use “adjustment grid” grade modifiers to
determine Final Impairment Grade within-class
5) Assign Spine Impairment Rating (IR) according to
diagnosis-specific IC/IG
Cervical Spine Regional Grid
Cervical Spine Regional Grid (2)
Methodology for Grade Determination WithinClass:
Adjustment Grid Summary
Functional History Adjustment: Spine
Physical Examination Adjustment: Spine
Physical Examination Adjustment: Spine (2)
Clinical Studies Adjustment: Spine
Net Adjustment Formula:
Example: Cervical Radiculopathy
• History: 23 y.o. right handed male sustained blow
to posterior aspect of neck from machine support
that slipped. Studies revealed C7-T1 disk
herniation. Patient managed conservatively and
refused surgery in spite of continued symptoms.
Evaluated 1 year post injury
• Functional History: Neck pain radiating to ulnar
aspect of left hand with numbness of ring and
little fingers. Increased symptoms with minimal
activity. PDQ score of 105 (~severe disability)
• PE: Decreased neck ROM; + cervical compression
with C8 radicular pain; decreased C8 sensation
and motor weakness (3/5)
• Clinical Tests: MRI posterolateral HNP C7-T1;
EMG left C8 fibrillation potentials.
Example 1: (cont’d)
• Diagnosis: C7-T1 disk herniation with
chronic left C8 radiculopathy
• Impairment Rating: Regional impairment
Class 2 (“default” Grade C = 11% WP)
Cervical Spine Regional Grid
Example 1: (cont’d)
• FH: (Grade 3)
PE: (Grade 2) (sensory & motor)
CS: (Grade 2)
• Net adjustment (3-2) + (2-2) + (2-2) = +1
• Diagnosis: C7-T1 HNP with chronic left C8
radiculopathy
• Final Impairment Rating:
– Class 2, Grade D = 12% WPI
Cervical Spine Regional Grid
Example 16-9 p 526
• Subject: 52 year old man
• History: Twisting injury
– s/p ACL reconstruction and medial meniscal repair
– Severe pain and “nearly total functional loss of his
extremity”
61
Example 16-9 p 526
• Physical Exam:
– “Mild laxity of the ACL”
– 5° loss of terminal extension
• 5° flexion contracture
– Normal flexion
– No effusion
– Severe limp in the exam room.
– NORMAL gait when exiting the exam room.
62
Example 16-9 p 526
• Clinical Studies: MRI had confirmed torn
ACL and “Bucket handle tear of medial
meniscus”.
– Pre-Op study
• Clinical Studies: Current weight-bearing
X rays show bioabsorbable fixation of the
ACL in good position with a normal 5 mm
joint space in all 3 compartments.
63
Example 16-9 p 526
• "The methodology requires the examiner
to pick one diagnosis for the region.
• The anterior instability diagnosis was
chosen, and the effect of the meniscal tear
is reflected in the adjustments."
64
Errata
• "Diagnosis: "cruciate or collateral ligament injury"
with mild instability assigned to class 1 with a
default value of 10% LEI.
• Functional History judged unreliable in the
presence of only mild instability and no atrophy,
and thus not used in rating.
• Physical exam instability not used as a grade
modifier since stability was used in class
assignment. No atrophy would be grade 0, but 5°
flexion contracture would be rated at 10% LEI by
table 16-23, and table 16-25 indicates a 10% LEI
rating would be a mild degree of problem, or a
grade 1 modifier from table 16-7.
65
Text for Example 16-9
• Clinical Studies: The anterior cruciate
reconstruction in good position without
joint space narrowing on current weight
bearing x-rays by itself would be a grade 1,
mild pathology adjustment. The presence
of the meniscal tear and subsequent repair
(documented in the operation report)
would justify moving up a grade to grade 2
for the final clinical studies adjustment.
• The net adjustment is +1, so class 1, grade
D, or 12% LEI is the final rating."
66
Example 16-9 p 526
• Diagnosis: ACL “mild laxity”
– Class 1
• Diagnosis: Meniscal injury
– Class 1
• FH = grade 4, but not utilized [INVALID]
• PE = grade 1 Flexion contracture
• CS = grade 2
– [Move up because of meniscal tear/repair]
• Net Adjustment = + 1, and grade D is used for ACL.
Class1, Grade D = 12% LEI
67
Features of AMA Guides 6th ed:
• ICF Model of Disablement (WHO 2001)
replaces outdated ICIDH model (WHO
1980)
• AMA Guides is regularly updated with
latest, evidence-based diagnostic
information
• AMA Guides is increasingly diagnosisbased, hence physician-friendly and easy to
learn and to use
Features of AMA Guides 6th ed: (2)
• AMA Guides is internally-consistent, hence
easy to apply across multiple organ systems
• AMA Guides is functionally-based to help
capture impact of impairment upon ADLs
• AMA Guides has high precision and resolution
of impairment ratings
• AMA Guides is transparent and promotes
• greater inter-rater reliability and agreement
Conclusions
• Many of the more meaningful changes
were for spine-related diagnoses that
resulted in surgery.
• Diagnoses not previously ratable (e.g. soft
tissue) may result in small impairments.
• Consistent process should result in
improved inter-rater reliability.
Thanks
For Your
Attention
71
71