Conflict with PA’s Protz Decision is Only on the Surface
The sections of Oklahoma’s Administrative Workers’ Compensation Act (AWCA) that require use of the “current edition” of the AMA’s Guides to the Evaluation of Permanent Impairment to determine PPD do not violate the Constitution, held a divided Supreme Court of Oklahoma on Tuesday, in Hill v. American Medical Response, 2018 OK 57 (June 26, 2018). At first blush, the decision would appear to be in total conflict with that of the Pennsylvania Supreme Court last year in Protz v. Workers’ Comp. Appeal Bd. (Derry Area School Dist.), 161 A.3d 827 (Penn. 2017), which generally held that the use of similar language in the Keystone State’s Act constituted an unconstitutional delegation of legislative authority to the AMA. A close reading of the majority opinion shows, however, a considerable level of consistency in the reasoning applied by the majorities of the two state supreme courts.
Hill, a paramedic, injured his right shoulder on September 22, 2014, while lifting a patient. Two months later, he underwent surgery to repair a torn rotator cuff. After post-operative physical therapy, Hill was released on February 5, 2015, at MMI and given permanent restrictions. Hill’s employer admitted the injury and benefits were provided. After Hill reached MMI, the employer was apparently unable to accommodate Hill’s permanent restrictions. Hill later testified that his work with a new employer results in a 25 percent reduction in annual income.
Difference Between Impairment Levels Using 6th vs. 5th Editions
At a hearing, Hill submitted his physician’s medical report in which the physician opined that Hill sustained 8 percent whole person impairment pursuant to the AMA Guides, 6th Edition vs. 31.8 percent impairment if the impairment was determined using the 5th Edition. The employer’s evaluating physician submitted his own report that Hill sustained 4.2 percent whole person impairment pursuant to the 6th Edition. As later noted by the majority opinion, the difference in Hill’s disability award utilizing the 5th vs. the 6th Editions amounted to $28,035.50.
Commission Level Decision
At his hearing, Hill attempted to exclude the employer’s report, asserting that (a) the report violated the requirements of Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113, S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (b) the mandatory use of the AMA Guides, 6th Edition violated the Oklahoma Constitution. The ALJ rejected Hill’s arguments and determined that Hill sustained 7 percent whole person impairment, equal to an award of $7,913.50. The Commission affirmed.
Hill’s Daubert Argument
On appeal to the Supreme Court, Hill argued that the employer’s medical report was not relevant to establishing the nature and extent of Hill’s PPD because its reliance upon the 6th Edition violated the Daubert standards. Hill argued that the 6th Edition addressed impairment, whereas the Commission, through its ALJs, was charged with determining disability.
The majority said Hill’s argument was foreclosed by language within the AWCA itself. The AWCA provided its own definitions that were controlling. The AWCA unambiguously defined “personal disability” in a manner that aligned with the 6th Edition. It incorporated the 6th Edition’s definitions into its own. The majority noted that the Legislature had chosen to base PPD primarily on the 6th Edition’s impairment rating, as controlled by language in Okla. Stat. tit. 85A, § 2(34), which required that a physician’s opinion of the nature and extent of PPD to parts of the body other than scheduled members be based solely on criteria established by the “current edition” of the Guides [emphasis added]. The majority also noted that this sort of “equation” of PPD with impairment was not a new concept in workers’ compensation law.
Hill’s Multiple Constitutional Arguments
Unconstitutional Restraint on ALJ’s Fact Finding
The majority noted that Hill had also challenged the constitutionality of several provisions of the AWCA that mandate use of the AMA Guides. It observed that Hill argued that the mandatory use of the current edition of the AMA Guides under the AWCA was an unconstitutional restraint upon the ALJ who acts as the trier of fact in workers’ compensation proceedings and that such mandatory use constituted a legislative predetermination of an adjudicatory scientific fact.
Not so, said the majority. The Legislature was free to determine what evidence is and is not admissible in specific types of adjudicatory proceedings, although it may not afford elevated probative value to particular evidence nor give determinative effect to specific evidence or compel the conclusions to be drawn from it. The majority indicated that the provisions of the AWCA that required use of the current edition of the AMA Guides served to define both what constituted admissible evidence on the issue of PPD: expert evidence that conformed to the AMA Guides, as well as to define what constituted PPD. The provisions requiring use of the AMA Guides in the AWCA were not a legislative predetermination of the degree of any claimant’s impairment or award of PPD.
Hill’s Protz-Like Argument
Hill also argued that the AWCA provisions requiring the use of the “current edition” of the AMA Guides were unconstitutional because they constituted an unlawful delegation of legislative authority. This, of course, was the injured employee’s primary argument in Pennsylvania’s Protz case. The majority of the Oklahoma Court initially noted that nothing in Oklahoma law prevented the Oklahoma Legislature “from adopting as its own a set of particular standards already in existence” [emphasis by the majority].
According to the majority, the important question was what do certain provisions of the AWCA mean when they reference the “current edition of the American Medical Association guides to the evaluation of impairment?” The majority saw two possibilities:
Whether these provisions meant the edition of the AMA Guides in effect at the time of passage — in this case the Sixth Edition; or
The Sixth Edition now, followed by whatever future editions of the AMA Guides may be adopted at a later date.
The majority said that if the latter was the case, then the provisions would be an unconstitutional delegation of legislative authority.
The Legislature chose not to specify in the AWCA whether “most current edition” and “current edition” referred to the edition of the AMA Guides that was most current or current at the time of enactment, or at the time of a claimant’s injury or examination. Both interpretations were reasonable given the language of the AWCA, said the majority. Because the second interpretation would render the provisions requiring use of the AMA Guides an unconstitutional delegation of legislative authority, the majority indicated it was compelled to adopt the interpretation that “most current edition” and “current edition” referred to the current edition of the AMA Guides when the relevant provisions were enacted: the AMA Guides, Sixth Edition [Emphasis added; for a similar decision, see McCabe v. North Dakota Workers Comp. Bureau, 1997 ND 145, ¶16, 567 N.W.2d 201]..
Pennsylvania’s “Most Recent” Language Was Enacted Before Publication of 6th Edition
Recall that in Pennsylvania, when the Legislature inserted the “most recent edition” language into the state Act, the most recent edition published by the AMA was the 4th Edition. As such, the Pennsylvania Court found the statute constituted an unconstitutional delegation of legislative authority.
Stressing that the use by Oklahoma of the “current edition” of the Guides had been enacted after the publication of the 6th Edition, and not before, the majority in Hill concluded that unlike the situation in Pennsylvania, the Oklahoma Legislature had, therefore, not delegated its own authority to the AMA, and further, it had not somehow re-delegated the adjudicatory authority it granted to the Workers’ Compensation Commission.
No Denial of Due Process or other Constitutional Violation
The majority moved on to Hill’s other constitutional arguments, finding that there had been no denial of due process. Nor had there been a violation of Okla. Const. art. 2, § 6 (denial of access to justice).
“Cascading Constitutionality” — the “Padgett” Argument from Florida
The majority noted that Hill still had one arrow in his quiver: the argument that mandatory use of the AMA Guides, when combined with numerous other provisions of the AWCA, constitutes a violation of the “grand bargain” that forms the basis for workers’ compensation law. Sometimes referred to as “cascading constitutionality,” or the “Padgett” position (after the Padgett case in Florida), this argument stresses that over time there has been such an erosion of injured employee rights that the original “grand bargain” is no longer in place and that the injured worker has given up his or her potential tort recovery and over time received only de minimus recovery in return. The majority indicated that Hill had made no argument, beyond a single assertion, concerning how the grand bargain had been affected by the provisions of the AWCA requiring use of the AMA Guides.
The majority said that Hill’s arguments, including those concerning the grand bargain, amounted to is a claim that his award of PPD was insufficient. The majority said there was no doubt that use of the 6th Edition resulted in a lower impairment rating for Hill’s injury than what he would have received under the previously-used 5th Edition of the AMA Guides. According to the majority, however, the state Legislature was the proper forum for challenging the sufficiency of workers’ compensation awards and the policy choices underlying the grand bargain, not the Court.
Judge Kauger concurred in part and dissented in part. Judge Gurich, joined by Judges Edmondson and Reif, dissented. Among the arguments in the dissent was the contention that the 6th Edition represented a “paradigm shift.” The new model, represented by the 6th Edition, focused on enablement rather than disablement. The 6th Edition measured what an injured person could still do, not what the injured person had lost. In contrast, argued Judge Kauger, the AWCA was based purely on disability, specifically focusing on what has been lost due to injury or disease.
The judge had other problems with the 6th Edition. In all candor, however, the problems were policy-oriented, not legal. For example, the judge said that the 6th Edition gave no consideration given to whether or not someone had surgery as a result of the injury or whether the surgery was successful.
The judge indicated reluctance in engaging in a discussion of the Grand Bargain, that the limitations in the AWCA placed on injured workers have been numerous, however, and at times, onerous. According to the dissenting judges, the strength of the system was based on the adjudicators and the physicians who are experts, and well versed in the field of disability medicine and law. The system was out of balance, and made “robots out of the very highly qualified individuals who have been charged with the responsibility of administering the system” [Dissent ¶8]. According to the dissenting judges, the AMA Guides should be relegated to a “guide” and nothing more.