Alan Gurvey said he thinks a study comparing the two guidelines would be a waste of time and money. “Bottom line, we have heard enough about how the sixth edition for the most part will cause lower impairment ratings, so clearly it’s not something that I can support, being an applicant attorney,” he said. “Whether it occurs or not, I would hope that the Legislature is mindful of that fact in making its decision.”
California Gov. Jerry Brown’s call for a study of different versions of impairment ratings guidelines in a weekend veto message has some system users asking, “What’s the point?”
A study of differences in the fifth and sixth editions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which Brown directed while vetoing Assembly Bill 479, isn’t necessary to address the problems that the governor found with the bill, observers say.
It is also widely accepted that the sixth edition of the guides produces more conservative impairment ratings than the fifth, which is currently used in California. Since lower impairment ratings translate to lower permanent disability ratings and a smaller benefit check, there’s some question about whether a move to the the more recent rating guides would ever get through the Democrat-controlled Legislature.
AB 479 would have created a list of conditions doctors must address when determining impairment resulting from occupational breast cancer. The governor said the bill by Assemblywoman Lorena Gonzalez Fletcher, D-San Diego, was similar to three other bills she introduced that he also vetoed in that it was creating “disease by statute.”
The three previous bills by Gonzalez Fletcher — AB 570 in 2017, AB 1643 in 2016 and AB 305 in 2015 — would have required the impairment rating for occupational breast cancer be no less than the rating for occupational prostate cancer.
Supporters of the bills said prostate cancer is rated at 16% to 20% whole person impairment in the fifth edition of the AMA Guides. Breast cancer rates 5% if a woman is of childbearing age, 0% if she is not.
AB 479 didn’t require impairment ratings for breast cancer to be the same as those for prostate cancer. It would have required doctors to consider pain, disfigurement, loss of motion, absence or presence of the breast and other conditions when determining impairment. And it would have prohibited doctors from considering whether a woman is of childbearing age.
The governor said in his veto message that he wants the Division of Workers’ Compensation and the Commission on Health and Safety and Workers’ Compensation to hire a research organization to study the issue of potential bias in impairment ratings. Brown said the study should determine whether impairment ratings accurately measure impairment caused by cancer and whether those standards exhibit any bias based on immutable characteristics such as gender or race.
The governor also requested that the study compare the fifth and sixth editions of the AMA Guides “with respect to determining impairment resulting from industrial cancer.”
Mark Webb, owner of consulting firm Prop 23 Advisors, said the rating requirements in AB 479 tracked closely with the process used under the fifth edition of the AMA Guides, with the exception of the requirement to consider whether a woman is of childbearing age.
Webb said the Permanent Disability Rating Schedule already has an age adjustment factor. He said there appears to be a conflict with the PDRS age modifier and the AMA impairment guides also taking into account the age of a worker, but a study isn’t necessary to resolve the difference.
The Division of Workers’ Compensation could revise the PDRS rules to add a provision telling doctors who rate breast cancer using the fifth edition of the AMA Guides not to consider age, he said.
In fact, Webb said the U.S. Department of Energy uses the fifth edition for occupational cancer claims and instructs doctors not to consider whether a woman is of childbearing age.
Webb said he thinks any conversation about moving to a newer version of the impairment rating guidelines would likely have to be part of a larger discussion about appropriate compensation for impairments and disabilities.
Steve Cattolica, director of government relations for the California Workers’ Compensation Services Association, said the sixth edition has been controversial since it was introduced in 2007.
CWCSA said in an email blast sent to members Tuesday that it agreed with Webb’s assessment, expressed in a Sunday newsletter, that a study was not necessary for changes that could be made administratively.
“One must wonder why the governor chose to mandate a comparison study using the historically controversial AMA Guides sixth edition when it would be far simpler to tweak the PDRS as Mr. Webb suggests,” the e-blast said. “Whose fingerprints are really on this veto message?”
Applicants’ attorney Julius Young, a partner with Boxer & Gerson in Oakland, said the call for a study of the sixth edition caught his attention, but he doesn’t know what to make of it.
The study isn’t due until March 2020, which could postpone until the 2021 session any legislative fixes that could be recommended by study. Young said it’s possible that whoever is elected to succeed Brown in November could pull the plug, and he said he doesn’t know if there’s any support for moving California’s comp system to the sixth edition.
Attorney Kenneth Kingdon, whose law firm in San Pedro specializes in rating medical reports under the fourth, fifth and sixth editions of the AMA Guides, said he believes everyone agrees that the sixth edition yields lower ratings than the fifth. The more conservative ratings led some states to decide against moving to the most recent rating guides, he said.
Kingdon said one reason California uses the fifth edition is it is considered more “objective” than the fourth edition, and the sixth edition “takes that one step further.” He said there is less variability in how doctors can rate impairment under the sixth edition.
At the same time, he said the sixth edition makes allowances for what it calls the “burden of treatment compliance,” which could increase an impairment rating for someone who would have to undergo a treatment such as dialysis. There is no accounting for the burden caused by treatment under the fifth edition.
Kingdon also said it may be possible to allow doctors to use both guidelines.
Case law already allows doctors to rate impairments using any chapter "within the four corners" of the AMA fifth edition. California could allow doctors to work within the four corners of both editions to determine ratings, for example taking the compliance burden factor from the sixth edition and combining it with the impairment rating from the fifth, Kingdon said.
Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey & Win in Sherman Oaks, said there were already questions about whether the fifth edition of the guidelines produce ratings that are fair for injured workers. The guides in general may not be the best tool to measure disability from occupational injuries because they don’t address work impairments or work disability specifically.
Gurvey said any lawmakers actually interested in moving to the sixth edition would be advocating for such a change rather than “formulating bills to address potential discrimination based on immutable genetic factors for the governor to veto.”
That was a reference to the governor’s veto of SB 899, a bill that would have prohibited apportionment to a genetic predisposition based on race or other protected characteristics that Brown said was unnecessary and duplicative of existing law.
Gurvey said he thinks a study comparing the two guidelines would be a waste of time and money.
“Bottom line, we have heard enough about how the sixth edition for the most part will cause lower impairment ratings, so clearly it’s not something that I can support, being an applicant attorney,” he said. “Whether it occurs or not, I would hope that the Legislature is mindful of that fact in making its decision.”
Courts in two states have struck down statutes mandating the use of the sixth edition of the guides.
The Pennsylvania Supreme Court, in Protz v. Workers’ Compensation Appeals Board (Derry Area School District), said a statute mandating that doctors use the “most recent” edition of the AMA Guides gives the American Medical Association “unfettered control” over impairment rating in an unconstitutional delegation of authority.
The Kansas Court of Appeals in August said the sixth edition was considerably more restrictive than the fourth edition that was used before reforms in SB 187 were passed in 2011.
The court said one injured worker received $14,804 in benefits because the injury to his neck rated as a 6% whole person impairment under the sixth edition. Under the fourth edition, the worker would have rated 25% and received $61,719.
The court noted that it ruled two months earlier that another worker was left with no remedy for his injury because the sixth edition prohibits assigning an impairment rating for a torn rotator cuff that was previously injured. There was no dispute that the worker suffered a compensable injury, and workers’ compensation was his only remedy. But under the sixth edition of the AMA Guides, there was no remedy available.
“The Legislature went too far with the adoption of the sixth edition, and we agree that the act no longer comports with due process for injured workers who sustain a permanent impairment as a result of an injury occurring on or after Jan. 1, 2015,” the three-judge appellate court panel said in Johnson v. U.S. Food Service.
The court struck any statute mandating the use of the sixth edition of the AMA Guides and reinstated the use of the fourth edition as the basis for determining impairment ratings.
Kansas Attorney General Derek Schmidt earlier in September asked the state’s Supreme Court to review the decision.