AMA Guidelines used in kentucky for determining Impairment not based on science or evidence. Not Peer Tested. Will they pass a Daubert Test?


  

The Ky. legislature has mandated that the American Medical Association “Guides to the Evaluation of Permanent Impairment? be used to determine the impairment rating caused by injury or occupational disease.  See KRS 342.730.
 

Other states have ditched the AMA Guidelines and adopted their own guidelines. Critics of the AMA Guidelines claim that the Guidelines are not based on sound medical or scientific grounds. (i.e. Texas, Wisconsin)  (LawReader subscribers can see more about these alternative review standards.)
 

A number of authorities point out the distinction between “Impairment? and “Disability?.
 

The Legislature uses the AMA Guidelines as a formula for calculating benefits.  While some standard is convenient to simplify the determination of benefits, it would appear that the AMA authors of the Guidelines never intended them to be used to make an evaluations of  “job impairment?.  They were intended only as a guide for making “medical disability? evaluations as opposed to “job impairment? evaluations.  The AMA says its guidelines should not be used as the only basis for determining comp benefits.

 

The Legislature could look to the findings of other states to adopt guidelines based more on reality than on a hypothetical system not designed for the use which Kentucky and l9 other states are using the AMA Guidelines.

 

It would be interested to see the Daubert test standards applied to the AMA Guidelines. 

 

The claims raised by several authors is that the AMA standards are not based on science, and are not peer tested, as required by Daubert v. Merrell Dow Pharmaceuticals Inc., U.S., 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

 

The AMA Guidelines are the Worker’s Comp. Bible for determining disability ratings, but they were not designed for this use.  Critics argue that the Guidelines fail to give credit to the facts of particular cases.  Critics claim that the Guidelines often result in Industry biased results.
 

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These additional resources are found on LawReader under the  following headings which may be accessed by LawReader members.
 

 TORT RESOURCES AND PERSONAL INJURY LAW – MAIN TORTS INDEX  and
 

 WORKER’S COMPENSATION – EVALUATION OF PERMANENT DISABILITY  Wisconsin Guidelines for Permanent Disability, – Pain, Joints, Limps

 
WORKERS’ COMPENSATIONS LAW & FORMS  
 

COMMENTS:
 

(For this article we have provided some excerpts which show the nature of the attacks on the AMA Guidelines. LawReader subscribers can access the full topics.)
 

AMA SAYS: guidelines should not be used as the only basis for determining comp benefits.?
“The AMA guidelines were originally designed solely to evaluate the extent of medical disability. They do not consider the type of job the injured worker has, or the worker’s age, experience or training. All of these need to be considered in deciding a level of compensation.
Indeed, according to a hard-hitting report by Greg Tarpinian of the Labor Research Association, the AMA itself says its guidelines should not be used as the only basis for determining comp benefits.
Most workers’ comp experts in the U.S. say that comp benefits should be based on wage and earning loss, as well as extent of disability. A permanent loss of motion of an index finger will have a far greater effect on a person doing fine assembly of electronic parts than on a stockroom worker. A back injury may more severely impair a truck driver than a bank president. The AMA guidelines don’t consider such differences.?
 

AMA publishing false and misleading clinical guidelines that were causing needless pain and suffering in patients
The 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment (page 496) state that at least eight of the objective findings listed “must” be present “concurrently” to establish a diagnosis of RSD/CRPS.

 

The AMA has been blatantly irresponsible and has acted in a reckless manner. The evidence is two-fold:
First, I called Linda Cocchiarella, M.D., Editor of the 5th Edition. I requested published data to support the AMA’s diagnostic criteria and the names of people responsible for the peer review process for AMA’s published diagnostic criteria for RSD/CRPS. Dr. Cocchiarella said she was not aware of published data to support the diagnostic criteria nor was she aware of a peer review process for the diagnostic guidelines. Thus, there is no peer review process to support the AMA’s clinical guides and no one at the AMA stands accountable for the clinical guides.
Second, nowhere in the scientific literature will you find such stringent criteria for the diagnosis of RSD/CRPS.
Any organization, such as the AMA, that publishes clinical practice guidelines without any accountability or peer review process, is simply acting recklessly to endanger the health and lives of innocent people. In addition, the AMA has created the appearance of being in cahoots with the insurance industry. To the delight of insurance companies, the AMA guides are being used by carriers as a basis to state patients do not have RSD/CRPS and as a basis to deny authorization and payment for care.?
AMA- Physician Guidelines for Return to Work After Injury or Illness  
 “while physicians are often asked to “describe a patient’s work abilities or work restrictions, … there is little science available to guide decisions on these questions.”  Report by AMA
  Impairment Rating and Disability Determination  discussion of Impairment vs. Disability, AMA guidelines
“According to the fifth edition of the AMA Guides, disability is defined as “an alteration of an individual’s capacity to meet personal, social, or occupational demands because of an impairment.? The WHO defines disability as an activity limitation that creates a difficulty in the performance, accomplishment, or completion of an activity in the manner or within the range consider normal for a human being. Difficulty encompasses all of the ways in which the performance of the activity may be affected.
On the other hand, the SSA defines disability as “the inability to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment(s), which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.? Workers’ compensation systems usually define disability as a reduction in wage-earning capacity as a result of an injury, illness, or occupational disease that arose out of, or in the course of, employment.
Distinguishing the difference between impairment and disability is imperative. One individual can be impaired significantly and have no disability, while another individual can be quite disabled with only limited impairment. For example, a person with paraplegia who is wheelchair-bound may be working full time quite successfully as an accountant and, therefore, would not meet the SSA’s definition of disabled. On the other hand, a concert pianist might have a relatively minor injury to a digital nerve that severely limits his/her ability to perform basic work activities (playing difficult piano concertos). In some disability systems, a person in this situation might meet the definition of disabled, even though he/she can do other work.
Because of this difference between impairment and disability, physicians are encouraged to rate impairment based upon the level of impact of the condition on performance of activities of daily living (ADL), rather than on performance of work-related tasks. According to the AMA Guides, impairment ratings derived from the AMA Guides are “not intended for use as direct determinants of work disability.?
Interestingly, various professionals and institutions regularly use the AMA Guides for direct measurement of disability. Most states recognize the impairment ratings determined by the AMA Guides as direct measures of disability, despite the stated intent of the authors.?
 

KRS 342.730 Determination of income benefits for disability — Survivors’ rights –
Termination — Offsets — Notification of return to work.
(1) Except as provided in KRS 342.732, income benefits for disability shall be paid to
the employee as follows: ….
 

 (b) For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of
the employee’s average weekly wage but not more than seventy-five percent
(75%) of the state average weekly wage as determined by KRS 342.740,
multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by “Guides to the Evaluation of Permanent Impairment,” American Medical Association, latest edition available, times the factor set forth in the table that follows:

 

AMA Impairment Factor
0 to 5% 0.65
6 to 10% 0.85
11 to 15% 1.00
16 to 20% 1.00
21 to 25% 1.15
26 to 30% 1.35
31 to 35% 1.50
36% and above 1.70

 

ANNOTATION FOR THIS STATUTE:
 

1. Williams v. FEI Installation, No. 2005-CA-000653-WC (KY 12/22/2005) (KY, 2005)   Since the 1996 amendments, KRS 342.730 has required a recipient of permanent income benefits to have an AMA impairment rating. Although the 2000 amendments to KRS 342.730(1)(b) changed the methods by which a partial disability award is calculated, the statute retained the use of an AMA impairment as the basis for calculating a partial disability award.
 

 

Additional Ky. Authorities which mention AMA Guidelines:
Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149 (Ky. App., 2006)           March 10, 2006

We agree with Jones that the AMA Guides do not abrogate a physician’s right to assess independently an individual’s impairment rating. We also agree that if the physicians in a case genuinely express medically sound, but differing, opinions as to the severity of a claimant’s injury, the ALJ has the discretion to choose which physician’s opinion to believe. But an ALJ cannot choose to give credence to an opinion of a physician assigning an impairment rating that is not based upon the AMA Guides…
 

 

 

Louisville Remodeling and Painting v. Muller (Ky. App., 2003)         June 13, 2003

On appeal to this Court, appellant argues that the Board erred because the amendment to KRS 342.730, which added KRS 342.730(1)(c)(3), came after the Supreme Court decision in Ira A. Watson Department Store v. Hamilton, Ky., 34 S.W.3d 48 (2000), and that the amendment effectively modified Watson so that age and education can only be considered by the ALJ as enhancements to the 13% AMA Guidelines’ impairment rating, and not as part of a second step to consider “other…  
 

Doctors using the Guidelines often disagree:
 

Wells v. Morris, 698 S.W.2d 321 (Ky. App., 1985)    October 25, 1985

The issue on appeal was based by the claimant upon the fact that three doctors had testified that he was indeed suffering from functional impairment according to the AMA guidelines of 1977. Two of the doctors had opined that claimant’s impairment was 30% to the body as a whole, while the third doctor had assessed only 10% functional impairment under the guidelines.
daubert and medical opinions:
 Rockwell International Corporation v. Wilhite, No. 1997-CA-000188-MR (Ky.App. 01/14/2000)
 

 In General Electric Co. v. Joiner, the United States Supreme Court said that there is nothing in Daubert or the Federal Rules of Evidence that requires a trial court “to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.
 

A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
 

In this case, the trial court permitted Snyder to opine that any quantity of PCB contamination, no matter how slight, renders property worthless; and this is true, according to Snyder, in the absence of proof of any harm to the property, to the people who occupy it, to their crops or to their farm animals. The admission of this testimony was an abuse of discretion.

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