The major changes in Illinois’ workers compensation system are stirring much conversation, modeling, and debate among stakeholders. One of the least-understood (at least by me) provisions of the reform legislation dealt with the adoption of impairment guidelines.
The person who probably knows more about impairment and disability assessment than anyone else alive was kind enough to offer his thoughts on the issue. Chris Brigham, MD, has been involved in this issue for thirty years. Here are his thoughts on the potential impact of the guidelines in Illinois:
In the past determining permanent partial disability was not consistent in the State of Illinois since the Industrial Commission did not make use of any standard guidelines, such as the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), which are used in the vast majority of state workers’ compensation systems in the United States, in other arenas, and internationally. Historically, the Industrial Commission would determine the extent of PPD (Permanent Partial Disability) based on their “experience” and would not allow testimony for any doctor’s opinion as to the percent of disability. Factors that the Commission considered (and will continue to consider until 9/1/2011) are nature of accident and injury, extent of lost time, physical findings, ability to return to work, description of job, average weekly wage, and subjective complaints. Adding the use of the Guides as a component in determining PPD awards has the potential of increasing the reliability and consistency of these awards.
House Bill 1698, Section 8.1b Determination of permanent partial disability, applies to injuries that occur on or after September 1, 2011. Since permanent impairment is not assessed until the claimant has achieved maximal medical improvement (MMI), which may not occur until a year or longer post injury if there is permanent loss, it is probable that this will not significantly impact actual claims until mid 2012. However stakeholders need to be prepared for this change.
The most current edition of the AMA Guides is the Sixth Edition, which reflects substantial improvement in impairment assessment. The Sixth Edition is currently used by fourteen states, for Federal Employee’s Compensation Act (FECA) cases, and internationally by several countries.The assessments must be performed by physicians; this is consistent with the standards defined in the AMA Guides and makes sense since clinical judgment is required by the Sixth Edition. Based on our experience nationally reviewing several thousand ratings, there is a relatively high error rate in assessing impairment; therefore, steps will need to be taken to assure accuracy.
I asked Chris to expand on the issue of errors in determining ratings and impairment; here’s his response.
We are observing a lower error rate with the Sixth Edition [compared to the Fifth Edition] which reflects significant improvement in the process of assessing impairment, using a more contemporary and consistent methodology – one that is less likely to result in errors.
Several steps should be taken to reduce the error rate, starting by recognition of the significance of this problem. This has been area that the property and casualty field has not adequately addressed, resulting in significant costs – both financial and personal (having some perceive themselves as more impaired than they actually are).
– Impairment ratings must be done when the individual is at maximal medical improvement; therefore clients should take steps to determine if someone is at MMI and then proactive steps to assure an accurate rating.
– The process of assessing impairment is based primarily on three steps: 1) obtaining clinical data (history, physical examination findings, and studies), 2) analysis of the clinical data and 3) applying the data to the criteria provided in the Guides (consistent with specific procedures as defined in the Guides). The traditional rating process has the same person (the physician, either treating or IME) perform all three steps; however this does not work well.
– Ratings should be performed by skilled IME physicians who have demonstrated competency in performing ratings and the quality of their work should be monitored. In advance, clients can have experts on the Guides review the clinical data (obtained from step 1, typically this information is available in clinical records), analyze this data, and either prepare a rating for review by an evaluating physician or provide guidance on how the rating should be done.
– All impairment ratings received should be “screened” based on certain criteria, and if impairment ratings are above a specific threshold or “red flags” are identified, the ratings should be involved by experts on the Guides. We find that this is a highly technical area requiring both significant experience with the Guides and working closely with physicians; we find that this typically is not within the skill set of an adjuster or attorney. If the expert finds the rating to be incorrect, than interventions should be taken to correct the rating. These interventions are dependent on the jurisdiction and case.
– We have developed an approach that works well in securing an accurate rating; this process involves assigning the three step process to two different parties, with the steps 1 and 2 being carried out by an evaluating physician (an IME physician following specific directives about what data to provide) and, using the resulting data, have step 3 completed by an expert on the rating process. This is similar to the process many of us use for our taxes, e.g. we are given directives about what data to obtain and this data is then reviewed by another party to complete the forms and compute the final result.
The Sixth Edition, the current Edition, will be used in Illinois, and this should be of tremendous benefit in achieving more reliable ratings. In the Fifth Edition there are differing approaches depending on which chapter is used, however in the Sixth Edition the approaches are consistent reflecting methodology used with the International Classification of Functioning, Disability and Health.
The impairment rating is only one factor that will be considered in determining the level of permanent partial disability. Other factors that must be considered: the occupation of the injured employee; the age of the employee at the time of the injury; the employee’s future earning capacity; and evidence of disability corroborated by the treating medical records. No single factor shall be the sole determinant of disability.
Since impairment is not synonymous with disability, it is appropriate to consider other factors in determining disability. The amendment states “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.” The fact finder will need to use judgment; however the rationale for the decision must be documented. Significant weight should be given to the impairment rating in determining the PPD.
Chris’ conclusion – To have the impact the House Bill was meant to have, we recommend the arbitrators give thoughtful consideration to the AMA Guides rating and how it was determined. It they do, we believe this process will result in both a more valid and reliable process to determine permanent partial disability. If they do not, the improvement hoped for will not be achieved. Requiring use of the current edition of the AMA Guides is a positive step forward in assuring more appropriate permanent partial disability awards.
What does this mean for you?
While the new Impairment Rating methodology has promise, the actual impact depends just as much on HOW the methodology is implemented as the tools used. This is not a panacea, nor is it a purposeful attempt to harm workers. One hopes the parties will work together to make sure the implementation is effective and well-designed.
One hopes.
