The American Medical Association: Guides to the Evaluation of Permanent Impairment is a book used by doctors to assign percentage ratings to those who have suffered injuries. The rating system described by the Guides has been under development since 1958. A series of articles first published in the Journal of the American Medical Association, between 1958 and August of 1970, became the basis of the first edition of the book form of the Guides. The first edition was published in 1971. The latest edition, the 6th edition, was published in November of 2008. Georgia uses the 5th edition.
The AMA Guides to the Evaluation of Permanent Impairment was assembled in response to the need for a standardized, objective rating system which would describe the amount of damage caused by various injuries and illnesses. The rating systems described in the AMA Guides to the Evaluation of Permanent Impairmentwere developed by committees of experts. The ratings described by the Guides have been adopted by workers compensation and injury compensation systems in most states of the United States and a number of other countries.
On page 17 of the AMA Guides to the Evaluation of Permanent Impairment, fifth edition, it says that “if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.” The Guides are basically a set standards or a cookbook for any doctor or other knowledgeable observer to give an impairment rating. Moreover, “any other observer or physician following the methods in the Guides to evaluate the same patient should report similar findings.”
Medical causation must be proved to a reasonable degree of medical certainty and cannot be based on mere speculation.
An identifiable factor (accident) that results in a medically identifiable condition ( injury or illness).
American Medical Association: Guides to the Evaluation of Permanent Impairment, fifth edition. Chicago, American Medical Association 2001
Causal opinions in reports and testimony must be given in terms of reasonable medical probability or certainty. (more probably than not).
Probability, simply means that something is more likely than not (51% or greater). If the confidence is equal to or less than 50% it is merely a possibility. American Medical Association: Guides to the Evaluation of Permanent Impairment, sixth edition. Chicago, American Medical Association, 2008
Once causation is determined and there is probable cause related to the event, then apportionment is evaluated. If there is no causal relationship then apportionment is not necessary.
American Medical Association: Guides to the Evaluation of Permanent Impairment, fifth edition. Chicago, AMA 2001
The extent to which each of 2 or more probable causes are found responsible for an effect (injury, disease, impairment, etc..) American Medical Association: Disability Evaluation, second edition. Chicago, AMA 2003.
A distribution of causation among multiple factors that caused or significantly contributed to the injury and resulting impairment. American Medical Association: Guides to the Evaluation of Permanent Impairment, sixth edition. Chicago, AMA, 2008
Precipitation - Injury or exposure causes a “latent” or potential disease process to become manifested. Acceleration - Injury or exposure hastens the clinical appearance of an underlying disease process. Aggravation - A permanent worsening of a prior condition by a particular event or exposure. Exacerbation - A temporary worsening of a prior condition by an exposure / injury. Recurrence - Signs and symptoms attributable to a prior illness or injury occur in the absence of a new provocative event. American Medical Association: Disability Evaluation, second edition. Chicago, AMA 2003, page 99 -100.
The phrase "pre-existing condition" often causes confusion.
There are only two types of pre-existing conditions. The first is known as an "inactive" or "dormant" pre-existing condition. The second is known as an "active" or "symptomatic" pre-existing condition.
The difference between an active vs. inactive pre-existing conditions is "like night and day."
This may require a detailed review of past and present medical records.
Inactive pre-existing condition is if there is no evidence that a pre-existing condition is causing pain or disability before trauma is sustained.
The "proximate cause" of the present symptoms is the recent trauma, even though the symptoms may be worse or healing may take longer because of a pre-existing condition.
Besides classifying the apportionment it may also be necessary and beneficial to relate the percentage that the present condition or impairment is attributable to the new injury or event. To do this there must be:
1. Documentation of a prior factor.
2. Current impairment is greater than the prior factor (prior impairment, prior injury or illness).
3. There is evidence that the prior factor caused or contributed to the impairment, reasonable probability.
Georgia Code - 43-9-16 (d)
Georgia code 34-9-263
(d) Impairment ratings. In all cases arising under this chapter, any percentage of disability or bodily loss ratings shall be based upon Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association. (Nowhere does it say an impairment rating has to be performed by a medical doctor. “shall be based upon Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association.”)
On page 17 of the AMA Guides to the Evaluation of Permanent Impairment, fifth edition,it says that “if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.” The “AMA Guides” are basically a set standards or a cookbook for any doctor or other knowledgeable observer to evaulate impairment. Moreover, “any other observer or physician following the methods in the Guides to evaluate the same patient should report similar findings.”
The term any knowledgeable observer leads us to:
In 1993, the US Supreme Court directed federal judges to examine the method or reasoning underlying the admission of expert evidence and to admit only evidence that was reliable and relevant ( Daubert v. Merrell Dow Pharmaceuticals, Inc.). Georgia uses Daubert to qualify evidence. Daubert set forth a non-exclusive checklist for courts to use in assessing the reliability of scientific expert testimony. The effect of this decision was that judges presiding over technically complicated cases have assumed a new gate keeping function, screening expert evidence to ensure that what was admitted was both relevant and reliable. In Kumho Tire Co. v. Carmichael (97-1709, 1999), the U. S. Supreme Court ruled that expert testimony need not be based on scientific knowledge or methods, but may rely on the training, experience, education, and other qualifications of the witness.
AMA Guides to the Evaluation of Permanent Impairment is the only method acceptable using Daubert to evaluate for an impairment. “if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria. ” Then, “any other observer or physician following the methods in the Guides to evaluate the same patient should report similar findings.”
Federal Rules of Evidence 702
Rule 702: Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the court of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Division of Federal Employees' Compensation (DFEC)
A.M.A. Guides to the Evaluation of Permanent Impairment, 6th Edition
Effective May 1, 2009, the Division of Federal Employees' Compensation (DFEC) will adopt the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, for schedule award entitlement determinations.
The Federal Employees' Compensation Act (FECA) does not specify the manner by which a schedule loss under 5 U.S.C. 8107 should be determined. For consistent results and to ensure equal justice under the law to all claimants under the Act, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants. DFEC has used the American Medical Association's Guides to the Evaluation of Permanent Impairment standardized tables for this purpose for more than fifty years, dating back to the first Guide for Extremities and Back published in February 1958. The Employees' Compensation Appeals Board (ECAB) has long concurred in this adoption as a standard for evaluating schedule losses and the Guides have proven a useful tool in measuring schedule impairment under FECA.
The American Medical Association (AMA) has periodically issued new editions of the Guides in order to keep pace with advances in medical treatment, diagnoses and philosophy. The stated goal of each new edition is to provide a fair and authoritative impairment guide based on the most recent medical advances. As injuries sustained by individuals covered by the FECA run a very wide gamut and so that injured workers have the benefit of the most current medical thinking, DFEC has consistently adopted each new edition of the Guides as it became available. In order to consider injured workers' permanent impairment in light of the most recent medical treatment evolution, DFEC has consistently adopted each new edition of the Guides as the standard in determining percentage of impairment, and DFEC's decision to adopt the Sixth Edition is in keeping with this long history of use. FECA Bulletin 09-03 (issued March 15, 2009) sets forth DFEC's implementation of the Sixth Edition of the Guides. This bulletin is available on-line at www.dol.gov/owcp/dfec/procedure-manual.htm.
FECA (Federal Employees Compensation Act)
The schedule award provision of the FECA (Federal Employees Compensation Act) and its implementing regulations set forth the number of weeks of compensation to be paid for permanent loss, or loss of use, of body members listed in the schedule. The Act, however, does not specify the manner in which the percentage of loss of a member shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables to calculate schedule awards so that there may be uniform standards applicable to all claimants. The Office has adopted, and the Board has approved, the use of the American Medical Association, Guides to the Evaluation of Permanent Impairment 5th Edition, as an appropriate standard for evaluating schedule losses.
The detailed description the physician provides must include, when appropriate:
a. loss of degree of active motion of affected member. b. loss of degree of passive motion of affected member. c. amount of atrophy or deformity. d. decrease in strength or impairment, or e. other pertinent description of the impairment.
Physicians are required to use the most current AMA Guides to the Evaluation of Permanent Impairment available at time of rating the impairment. Where injuries leave objective or subjective impairments not measured by the AMA Guides the OWCP is required to consider pain, atrophy, deformity, loss of sensation, loss of strength, marked sensitivity to heat or cold and soft tissue damage (scaring, discoloration), in addition to the AMA Guides. FECA-PM 2-808-6.a(2). Richard Gioriano, 36 ECAB 484 (1989), remand to determine extent of impairment due to pain, discomfort or loss of sensation in arm.
Therefore, in addition to the AMA guidelines above, CE's (Claims Examiners) should advise any physician evaluating permanent impairment to report objective or subjective impairments which cannot easily be measured by the AMA Guides. Some examples are:
(a) Pain (b) Atrophy (c) Deformity (d) Loss of sensation (e) Loss of strength (f) Marked sensitivity to heat or cold (g) Soft tissue damage (scarring, discoloration). See FECA-PM 2-0808-6.a(2)
An amended award should be sought when you can show that you are entitled to a greater percentage of loss even after payment of the SA. An Amended SA can also be paid if you sustain an increased impairment at a later date due to work related factors. FECA-PM 2-808-7.b.
Concerning the need for an amended award, the FECA BULLETIN 01-05 states "A claimant who has received a schedule award calculated under a previous edition may later make an a claim for an increased award, which should be calculated according to the 5th edition."
Additionally, the Bulletin stated that the DMA should verify the appropriateness of the combination of lower extremity impairments in Table 17-2. This table will lower the impairment of the lower extremity. However, it is advised that the evaluator use the table which will allow for the greatest rating, despite multiple ratable abnormalities.
Plus, you can add any particular detail, that you know of, about your injury in the same letter and ask the physician to consider protecting your interest, within the law, when measuring your impairment by mentioning this detail(s).
The FECA provides for the payment of a Schedule Award. Schedule Awards are defined as an award of compensation payable for a set number of weeks for the loss or loss of use of a part of the body, whether total or partial.
The degree of impairment is established by medical evidence and expressed as a percentage loss of the member involved. Permanent impairment may originate either within the affected member (i.e., loss of use of your arm in a Carpal Tunnel Syndrome claim) or another part of the body (i.e., a back injury may result in impairment to a leg) for which a Schedule Award would be payable.
A claimant may also receive an Award for more than one part of the body concerning a single injury (i.e., a back injury may result in impairment to a leg and an arm).
The body members covered by the Schedule Award and the compensation schedule include:
Arm 312 weeks
Fourth Finger 15 weeks
Leg 288 weeks
Hearing (1 ear) 52 weeks
Hand 244 weeks
Hearing (both) 200 weeks
Foot 205 weeks
Breast 52 weeks
Eye 160 weeks
Kidney (1) 156 weeks
Thumb 75 weeks
Larynx 160 weeks
First Finger 46 weeks
Lung (1) 156 weeks
Great Toe 38 weeks
Penis/Female Sex Organs 205 weeks
Second Finger 30 weeks
Testicle/Ovary (1) 52 weeks
Third Finger 25 weeks
Tongue 160 weeks
Toe (other) 16 weeks
Note: The above figures represent total loss of use.
An injured worker should only apply for a Schedule Award after having reached maximum medical improvement (MMI) and are back to work full time (even in a limited duty capacity) or retiring. The OWCP will not pay compensation for wage loss (i.e., time in LWOP-IOD being paid by OWCP) and a Schedule Award at the same time; however, if the injury occurred on or after September 13, 1957, the Schedule Award may be paid concurrently with benefits under the U.S. Civil Service Retirement Act (OPM). In order to apply for a Schedule Award, you need to submit a CA-7.
The treating physician should be advised to use the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition, and to report findings in accordance with those guidelines. Injures sometimes leave objective or subjective impairment that cannot easily be measured by the AMA Guides. Some examples are: pain, atrophy, deformity, loss of sensation, loss of strength, marked sensitivity to heat or cold, and soft tissue damage such as scarring and discoloration. The effects of such factors should be explicitly considered along with the impairment measurable by the AMA Guides (5th Edition).
To support a Schedule Award, the file must contain competent medical evidence which:
Once all of the medical evidence has been submitted to OWCP, the Claims Examiner will review the file for completeness and forward the entire case file to the District Medical Advisor (DMA) for verification. If there is no conflict in medical option, you will be notified of the details concerning your Schedule Award. If there is a conflict, the Claims Examiner will schedule a second opinion or contact the physician for clarification.
Schedule Award--FECA Procedure Manual Chapters
Information on schedule awards can be found at the following:
* 5 USC 8107 * 20 CFR Part 10, Section 10.404 * 20 CFR Part 10, Section 10.422 * FECA Procedure Manual Part 2, Claims, Chapter 2-808 * FECA Procedure Manual Part 2, Claims, Chapter 2-901, Section 14 * FECA Procedure Manual Part 3, Medical, Chapter 3-700
More About a Schedule Award Payment
Because a referee’s decision is supposed to be fair and impartial, OWCP is strictly controlled by extensive regulations on how a selection of a referee is accomplished. The Employee Compensation Appeals Board(Board) places great importance on the appearance as well as the fact of impartially and therefore only if the selection procedures which were designed to achieve this result are scrupulously followed may the selected doctor’s opinion carry “special weight”. For instance, OWCP cannot select doctors who may give the appearance of having bias. Therefore, doctors who are employed by or associated with federal agencies (i.e. doctors who perform regular fitness for duty examinations for the USPS), must be excluded. To assure that selected doctors are aware of these regulatory restrictions, OWCP has adopted language to be inserted into introductory letters when a claimant is referred for an impartial examination: ”Because this examination is being requested in accordance with a statutory provision for resolving a conflict in medical opinion, it is important that the physician have no previous connection with the claimant, and no regular association with the claimant's employing agency. If you, or a member of your professional firm, have previously attended this patient, or regularly performed fitness- for-duty examinations for the patient's employer ... please call [the Office] so that other arrangements can be made for the impartial examination."
In one case the Board found that if a physician did not perform more than 3 to 4 fitness for dutyexaminations per year, that doctor would be able to serve as a referee. Presumably, anymore than four examinations in a given year would disqualify a doctor. Doctors who have had any previous connection with the claimant (i.e. doctors who have previously treated or examined a claimant) are also disqualified. The same is true for doctors who have consulted with OWCP under contract.
In order to assure impartially, qualified doctors are selected randomly in sequential order by a computer program [ using a claimant’s zip code. This zip code is entered into the software and a cluster of qualified doctors is produced. OWCP starts with the first five in the cluster. That doctor is called and asked if he will perform the examination. If the first doctor accepts the appointment then that doctor is chosen. If the doctor declines, then the second doctor is called. Only doctors who are board certified in their respective field of expertise are eligible to act as referees. If OWCP initially selects a doctor who exhibits one of the above biases, a claimant may be allowed to participate in the selection of another referee by filing a written after the initial appointment. There are two instances when the Office will allow a claimant to participate. There must be a specific request to participate and a valid reason must be provided or when there is a valid objection to the doctor selected by the Office. If OWCP agrees with the claimant’s objection regarding the selected referee, a list of three other referees will be prepared and the claimant may choose any one of the three.
The Office is not permitted to ask leading questions or have oral communication involving any disputed issues with the impartial doctor.
A good example of what constitutes a leading question can be found in the case of Vernon E. Gaskins, 39 ECAB 746 (1988). The Office’s medical advisor responded to a report of an impartial doctor and in so doing, suggested an different conclusion and in the process, insulted the Board.
Of course, there are a variety of ways that OWCP can effectively circumvent the random selection process of a referee. Review of recent case files reveal that OWCP only has documented the files with the referee chosen to perform the examination, not all of the referees that the computer program has selected. With only this evidence, there is no way to actually determine if more than one doctor was considered for selection. There is also a technique in the computer program, which allows OWCP to “bypass” any doctor that is selected. OWCP does not inform the claimant or the bypassed doctor that this has occurred. This “bypass” technique is clearly a means to disrupt the random selection process. When a bypass occurs, OWCP is instructed to enter a “bypass” code, which would indicate the reason for the “bypass”. However, one recent case file reviewed involving the selection of a referee, did definitely involve a “bypass” without a “bypass” code being used.
If a claimant has a duly appointed representative, the law states that both the claimant and the representative must receive notice of the referee appointment. If the claimant receives notice and the representative does not, the report of the referee cannot be used if it is adverse to the claimant Of course, if notice is not given to the representative and the referee’s report is favorable, there is no need to raise an objection to the report.
For further information on payment of schedule award, see:
* 20 CFR Part 10, Section 10.404 * 20 CFR Part 10, Section 10.422 * FECA Procedure Manual Part 2, Claims, Chapter 2-808 * FECA Procedure Manual Part 3, Medical, Chapter 3-700
Georgia Code - 43-9-16 (d)