Wednesday, May 4, 2016

MMI and other Artificial and Arbitrary Distinctions

Much of our American law is based upon decisions made by judges, since we began keeping records of such. This is an English tradition called the "common law," and as a former English colony, it became ingrained on this continent long before American independence.

Statutory law may add to existing common law. Or, it may change that law. Traditionally, those that change it are known as "Statutes in Derogation of the Common Law," and there is a tendency to interpret those statutes more strictly, that is with increased focus or specificity than other statutes. A well-written discussion of derogation is here. The world of Worker's Compensation is all based upon legislation written and passed by elected representatives, arguably in derogation of various rights and obligations under the common law.

Much in workers' compensation is dependent upon statutory distinctions and definitions. One of the most critical, and pervasive, is a legal concept called "maximum medical improvement," or "MMI." This concept also permeates personal injury tort practice. New to the exciting world of litigation, some several years (none of your business) ago, I was first introduced to the concept of "an MMI."

As defined in our Florida Worker's Compensation statute, section 440.02(10), Fla. Stat., MMI means:

"the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability."

It is interesting that this demarcation, MMI, is based on "probability." In Florida, injury "causation" requires 

"The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty," section 440.09(1), Fla. Stat. 

The existence of injury and cause must be to a degree of "certainty," while MMI may be based on "probability." The causation standard used to likewise be "probability." Some have conjectured that 440.02(1) was overlooked when the causation standard was changed. Others argue that the legislature intended a lower standard for MMI; an aside, but an interesting distinction and illustration of how statutes are constructed and amended. 

Section 440.02(10) seems a very straightforward, academic, definition of MMI. In my early days of practice, I attached significance and reverence to this phrase. It became a critical portion of the litmus of questions propounded in each and every deposition I took: "has the claimant reached maximum medical improvement, and if so upon what date?" 

In time, I became friends with physicians. In our less formal conversations, they confided their opinions regarding MMI. I learned that despite including the word "medical," MMI is a legal phrase, regarded by many (perhaps most) physicians as utterly irrelevant to their medical goals and practice. And, that is often the best they can say about it. 

Most physicians are focused upon the alleviation of symptoms, and restoration of function. They focus upon making patients better, or upon rendering them as comfortable as possible following injury or illness. There is no scientific relevance, in their process, to the assignment of some date upon which no further improvement is or was expected. How and why physicians treat illness or injury is not dependent upon such a distinction. As an aside, I say "most" physicians because there are those who seem to have lost this focus, and instead seem singularly focused on making, in some cases stealing, money, and worse

So, the law created this MMI distinction. It is a "dividing line" between temporary effects of injury, and the permanent effects. For a variety of legal reasons and constructs, lawyers and legislators decided that it was important to know whether an individual could be reasonably expected to improve further. It is at the point that such improvement is no longer reasonably anticipated that the ongoing, permanent effects of the injury or illness can be stated. Until MMI is achieved, then further improvement may change the patient's situation. Until then, treatment may further restore function or alleviate symptoms. 

It is critical that we understand MMI is an opinion. And as with all opinions, there is a propensity for disagreement, and different perspectives. It is common in the world of litigation that two physicians viewing the same patient, presented with the same test results, findings, and complaints, will render different opinions regarding the achievement of MMI. 

This can be a medical disagreement, with each physician stating her or his respective reasons in support of a particular date. It can also more simply be a temporal or factual disagreement. A doctor may opine that a patient reached MMI as of the first time she/he was seen by that doctor, or the first time seen after an extended hiatus in care. Asked "could the patient have reached MMI before that first appointment," many doctors prefer to stick with their personal knowledge, that appointment at which she/he saw the patient. She/he will note that a lack of information to conclude the appropriateness of any date before, and opine that appointment date is when the patient reached MMI. The doctor is simply doing her or his best to select a date supported by the best information available. 

A concept in medicine related to MMI is the assignment of permanent impairment ratings, "PIR." The PIR is a numerical representation of the extent of someone's "impairment." Impairment represents a measure of function. It is not about "disability," which is a concept more related to the field of vocational rehabilitation than medicine. Disability experts try to take the evidence of lost function (can't lift over 20 pounds, can't walk more than 100 yards, can't stand more than 60 minutes without a break) and apply that to an ability to work. There are more parameters, and this is a simplification, but it helps illustrate the distinction between "impairment" and "disability." 

Impairment attempts to quantify the extent to which a body or body portion or body part has been permanently harmed, or whose function has been decreased. Because this is an expression of "permanent" impact, PIR is generally computed in conjunction with achieving the MMI status. It would be illogical to determine the degree of "permanent" function loss while "lasting improvement" can still "reasonably be anticipated." When the doctor believes the improvement is no longer likely, then the permanent effects of injury are assessed, "impairment" is measured. Like MMI, PIR is an opinion. 

In an effort to increase consistency of opinions, and to apply standardization, in the 1970s the American Medical Association created the AMA Guides to Permanent Impairment. The word choice here is apropos; these are "guides" not certainties or guarantees. A great challenge of impairment ratings is the vast difference between various human beings. A torn meniscus in one patient might respond to treatment miraculously, while a similar injury in a second patient might never fully recover. Likewise, one person with such injury might find the subjective pain debilitating while another would not.

                                            

So, the law is dependent on MMI generally. In Worker's Compensation, it is the demarcation point between entitlement to temporary indemnity benefits and permanent. It is also therefore the subject of a significant amount of litigation. There are disagreements among physicians as to when MMI was reached in a given case. Some may be factual or temporal as discussed above. Others may be driven by expertise. A surgeon might have a different opinion than an occupational medicine physician. Either of these might have a different opinion than a psychiatrist. A chiropractor might disagree with them all. 

There are also factual MMI complications. For example a patient might decline surgery, at which point their recovery has plateaued and the surgeon opines she/he is at MMI. However, weeks, months, or years later that patient might elect surgery (one might reasonably fore go the risks of surgery until the symptoms reach an unbearable level). That surgery may be intended to produce improvement or lasting relief, and therefore this patient would no longer be at MMI for some period of time during and after the surgery. A workers' compensation patient, whose entitlement to "temporary" indemnity had ceased, might be entitled to it once again. 

In this kind of situation and others, MMI can be a moving target. It is an expectation in a specific case regarding further improvement. But no doctor is a fortuneteller, nor can anyone see the future in any regard with absolute clarity and perfection. No human being is perfect or infallible. Sometimes, people's opinions are just wrong (my lofty prognostications of a New Orleans Saints Super Bowl victory last year, alas, were a bit off the mark). 

It is not infrequent that an individual will be placed at MMI by a physician following an accident/injury. And, after a period of weeks, months, or even years that physician or another will propose medical treatment that is expected to improve the condition of the injured worker. This could be the surgery discussed above, but it is not limited to surgery. A physician might recommend additional therapy, medication, injections or more to improve the condition, to alleviate the effects of some injury. In our modern age, there seems to be daily news of new medical breakthroughs and innovative treatments. 

One legislative goal is to render delivery of worker's compensation benefits more predictable. Predictability of the amount and duration of benefits facilitates the process of pricing risk. With predictability of the timing and amount of benefits in cases, actuaries can predict anticipated cost, and calculate appropriate premiums for employers to pay in anticipation of covering these losses. One legislative foundation for this predictability is statutory definition of specific time limits for payment of various categories of benefits. These are statutory caps on the maximum duration of an injured worker's entitlement to various types of income replacement benefits. 

Statutory caps on the duration of various benefits are nothing new. However, since 1994, the Florida Worker's Compensation statute has limited temporary benefits to 104 weeks, or two years. This limitation has been examined and dissected by many adjudicators and repeatedly reviewed by the courts. This limitation, and its effects, currently is under review by the Florida Supreme Court. 

In a 2014 panel decision, Florida's first District Court of Appeal concluded that the 104 week on temporary indemnity benefits so shifted the grand bargain that the law was unconstitutional pursuant to "natural law." The entire Court reheard that case, and instead resorted to statutory construction to describe how the law could be applied to reach a constitutional outcome. Now the market waits to see whether the Supreme Court will agree with the court's statutory interpretation analysis or declare the cap unconstitutional. 

Florida law holds that when the legislature enacts a new version of a statute, that action also effectively destroys the previous version. Only one version can exist at a given moment in time. If the new statute is unconstitutional, then Florida law holds the old version is "revived" and becomes effective once again. Thus, there is no situation in which there is "no law," and determination of "which law" is reasonably straightforward. 

It is interesting that many find fault with the 104 week statutory limitation. One oft-voiced complaint, and justification for concluding the statute is unconstitutional, is that 104 weeks is an "arbitrary limitation." Remember, though, that if this statute is unconstitutional, the prior temporary indemnity limitation statute would be revived. The previous version capped these benefits at 260 weeks. A longer period, but some would argue it is no less an "arbitrary limitation." From an academic standpoint, some question whether there is more truth in either. Certainly, the longer the arbitrary period, the fewer situations of factual medical recovery might be implicated. There is a significant difference between two years and five. 

Some complain that any cap on temporary benefits is inappropriate because it forces a legal conclusion of MMI. But few can enunciate a thoughtful distinction between the law forcing a conclusion of MMI and a physician opining a conclusion of MMI. Either, they say, is a somewhat arbitrary selection of a date in time at which permanency will be assessed and opinions expressed. Either is an opinion, one medical and the other legislative. Some argue that neither is perfect, and likewise neither is fatally flawed. Remember opinions can be wrong in any event (the Jacksonville Jaguars will win the next Super Bowl, you heard it here first). 

A great deal of workers' compensation is dependent upon medical opinions, MMI and PIR. These opinions are held to a standard of probability (more likely than not), and are subject to change as the imperfect but sometimes downright miraculous human body works. There is a marketplace desire for predictability and definition, and a human inconsistency in response to treatment and perception of symptoms. There is a reverence for medical expert opinions regarding MMI, and yet a widespread recognition that it is a legal, not medical, construct. Despite that, many deride the legal experts, the legislature, for inserting their collective opinion.

Why does the law depend so heavily on these distinctions between temporary and permanent, medical and legal? Is there a more efficient manner in which the injured worker could receive an appropriate measure of benefits and the system could nonetheless enjoy an appropriate measure of predictability? Is there a better way to deal with the interrelation of "impairment" and "disability?"

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