Monday, September 1, 2014

The Latest AMA Guides and Psychiatric Impairment in Massachusetts

Last week a couple of stories about mental health caught my attention. The first is out of Massachusetts regarding the American Medical Association Guide to Permanent Impairment, commonly referred to as the AMA Guides. Florida workers' compensation abandoned the AMA guides years ago in favor of our own set of guidelines for impairment. 

The case in Massachusetts last week began with a decision as to which of the AMA guides to use. There are multiple editions of the AMA Guides; the latest is the Sixth Edition, published in 2007. The earliest edition was in 1958. Suffice it to say that the AMA has been in the Guide business for significant time. States that have adopted the AMA Guides generally will specify an edition statutorily. Massachusetts did not specify, leading to litigation over which edition should control. That in itself is a lesson in legislative drafting, that is lack of specificity is a sure route to litigation. 

In Robert M. Litchfield's Case, the trial judge determined that the appropriate guides to apply were the latest, the Sixth Edition. The judge also determined that "benefits for permanent loss of psychiatric function were not available to Litchfield." The appellate court affirmed both findings. 

Litchfield suffered a shoulder injury in 2001. With no history of psychiatric complaints, he thereafter began suffering symptoms of "anxiety and depression." The trial judge made factual findings regarding his decreased level of activity following the work accident. Then, the trial judge concluded that the pain and inability to work following the work accident "have cause psychiatric conditions of depression and anxiety."

The Court noted that Litchfield was awarded permanent and total disability benefits in 2009 as a result of his physical injuries. Now he claims permanent loss of psychiatric function and sought benefits attributable thereto. First the appellate court affirmed the use of the "latest" AMA Guides. Then turned to the denial of benefits for permanent loss of psychiatric function. 

The Court noted that "the AMA Guides 6th edition currently only considers impairments for selected well-validated major mental illness." Litchfield argued that "rating for this loss of (psychiatric) function is recognized for the first time in chapter 14 of the AMA Guides 6th Edition," and that he was entitled to benefits therefore despite having received benefits for the physical malady that underlie the psychiatric condition, including permanent total disability. 

The trial judge concluded, and the appellate court affirmed, that the pain associated with a physical injury is compensated by the rating assigned to that physical injury. In other words, the psychiatric component of the results of pain are not separately compensated. The Court quoted from Chapter 14, which provides "the psychological distress associated with a physical impairment is similarly included within the rating." The court was also persuaded by their conclusion that this "scheme" is part of the "strategy" seen in various other provisions of the 6th Edition.

The second article that caught my eye was titled Knee Replacement May Go Poorly for People Who Think Life Is Not Fair. This reported on a new study from McGill University in Montreal. This suggests that the way people perceive the world around them before an injury could perhaps influence how they feel about their treatment for the injury. 

I have said for years that people want and deserve to be treated with respect. I have encouraged and coached adjusters, employers, managers, physicians and more to be the ear that most if not all injured workers want after an injury. It is nice to be listened to, and to be able to believe that people have a genuine interest in you recovering from an injury or illness. 

This author of this study from McGill noted "individuals who judge their experience as unfair, focus on their losses, and blame others for their painful condition also tend to experience more pain and recover from their injuries slower than individuals who do not." But, she says these studies have been of populations who were victims of accidents and who could externalize blame for their predicament. So as to workers' compensation, I would guess she would agree that this has been known for some time.

The McGill study, however, focused on people who required treatment for degenerative changes, more in the line of osteoarthritis. These people, arguably, had less basis to externalize blame for their pain or need for treatment because there was no event upon which to focus. Their perceptions and feelings were gauged with a questionnaire before surgery. Following-up a year after knee replacement surgery, these patients were asked about their perceptions of the experience. 

The study concluded that "the more a patient agreed before surgery that life seems unfair and others are to blame for their problems, the more pain they reported experiencing one year after surgery. The study also noted "the more the patient thought about pain and felt helpless because of it before surgery, the more severe their disability during recovery seemed to be."

Both interesting insights on pain as a component of injury. Key take aways may be that pain and perceptions of it can perhaps be influenced by how a person feels about their situation overall. Another may be that rating the effects of pain may continue to be addressed differently depending on the specifics of particular editions of guidelines adopted by various jurisdictions or decisions of state's courts on selecting appropriate editions in the absence of clear statutory guidance. 

Another point that may be redundant, is that it matters how people are treated by others in this world, and their perceptions of that treatment. There is likely always benefit in treating people with the dignity and respect that you would want if you found yourself in their shoes. Everyone in the system should treat attorneys, adjusters, claimants, doctors, vocational experts and beyond with the same respect and patience they would like and expect. By the same token each of these should treat each other with the same respect and patience. 

If this mantra of patience and respect spread through the workers' compensation system, would it not be better for everyone involved? Maybe everyone's stress and anxiety could be reduced in their efforts related to dealing with someone suffering an injury? 

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