Opinion Mondays: As to AMA Guides, is There an Alternative to Protz?

BRB Says Required Use of “Most Recent Version of Guides is Not Unconstitutional Delegation of Legislative Power

In a decision that may have slipped beneath the radar of insurers, administrators, and attorneys whose work is not directly impacted by the Longshore and Harbor Workers’ Compensation Act [33 U.S.C.S §§ 901, et seq.] (“the Act” or “the Longshore Act”), and yet which, as I argue below, provides an interesting alternative to Pennsylvania’s 2017 Protz “AMA Guides” decision, the U.S. Department of Labor’s Benefits Review Board (“BRB”) recently held that a provision in the Act—33 U.S.C.S §§ 902(10)—which mandates the use of “the most recent” version of the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”), does not amount to an unconstitutional delegation of legislative power to the American Medical Association [Pierce v. Electric Boat Corp., BRB No. 18-0609, 54 BRBS 27, Dec. 7, 2020)].

Acknowledging the apposite—but opposite—holding of a divided Supreme Court of Pennsylvania, in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (Pa. 2017)(“Protz”), the BRB chose instead to adopt the reasoning offered by the Supreme Court of New Mexico in an earlier workers’ compensation decision, Madrid v. St. Joseph Hosp., 928 P.2d 250 (N.M. 1996). The BRB also found unpersuasive the injured claimant’s argument that the 3rd Edition of AMA Guides should have been utilized, since that edition was authoritative under the Act on the date the claimant sustained his work-related injury.

As I allow in my comments below, attorneys, insurers, and others on both sides of the AMA Guides issue should review the BRB’s decision, as it provides an excellent discussion of virtually all the salient points. As I also point out below, the BRB’s discussion is particularly important in light of the AMA’s decision last year to alter its editorial procedures so to allow for an annual, rolling “update” of the 6th Edition, as opposed to publishing a new 7th edition. Before we get to that new AMA editorial policy, however, let’s review Pierce.

Background of the BRB’s Pierce Decision

Claimant, a voluntary retiree, was diagnosed with an asbestos-related lung injury in 1992. He filed a claim under the Act. The employer voluntarily paid benefits beginning on June 20, 1992. Following claimant’s claim for additional benefits, an ALJ awarded compensation in 2015 for a 57.5 percent whole-man impairment based on the parties’ stipulations. Due to his deteriorating condition, claimant filed a motion for modification alleging his impairment had increased to 100 percent as of May 15, 2017.

Based on claimant’s credible testimony and two medical opinions, the ALJ found claimant’s whole-man impairment had increased to 65 percent based on the 6th Edition of the AMA Guides and awarded benefits accordingly. The claimant appealed to the BRB. The employer and the Director, Office of Workers’ Compensation Programs (“the Director”), urged affirmance.

Claimant Contended 3rd Edition of AMA Guides Should Be Utilized

The claimant contended, in relevant part, that the ALJ should have rated his impairment under the 3rd Edition of the AMA Guides, the version in effect at the time of his injury. He argued retroactive application of newer versions to his injury deprived him of vested rights and was an unconstitutional ex post facto modification.

The claimant added that Congress had improperly delegated, or the Department of Labor improperly sub-delegated—with the Department’s implementing regulation, 20 C.F.R. § 702.601(b)—the power to calculate benefits to the AMA, a private entity. By doing so, the claimant asserted, Congress had given the AMA significant power over claimants’ benefits under the Act. The claimant argued, in the alternative, that if there was no improper delegation, the AMA had gone so far afield with the 6th Edition that Congress could not have foreseen such a significant departure from the Guides originally adopted, and use of that edition unconstitutionally deprived him of due process. As his injury occurred in 1992, he contended the 3rd Edition was controlling for his injury for all times, including the initial assessment and all modifications of impairment ratings related to that injury.

Director, OWCP: No Such Delegation by Congress

With respect to the constitutional issues raised, the Director argued that Congress adopted the technical expertise and standards of an independent, respected authority and had not delegated its power at all. Because there was no delegation, there was no need for an intelligible principle for doing so, and there was no improper sub-delegation by the Department.

BRB Decision: No Unconstitutional Delegation to AMA

The BRB observed that Congress first incorporated the AMA Guides into the Act in 1984 when it introduced them in three sections related to hearing loss and retiree benefits, 33 U.S.C.S §§ 902(10), 908(c)(13)(E), 908(c)(23). Practitioners outside the Longshore Act should note that the use of the AMA Guides is not required for other sorts of claims. The BRB added that in doing so, Congress acknowledged that the AMA would update its Guides “from time to time.”

The BRB turned to the relevant provision within the Act, observing that Section 2(10) of the Act states:

“Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; but such term shall mean permanent impairment, determined (to the extent covered thereby) under the guides to the evaluation of permanent impairment promulgated and modified from time to time by the American Medical Association, in the case of an individual whose claim is described in section 910(d)(2) of this title.

33 U.S.C.S. § 902(10) (emphasis added).

The BRB further acknowledged the Director’s argument: that the most natural reading of the phrase “modified from time to time” in [Section 2(10)] was that the edition of the Guides to be applied in any given case was the edition in effect at the time the impairment determination was made.

Pointing to an earlier decision, Alexander v. Triple A Mach. Shop, 34 BRBS 34 (2000), rev’d on other grounds sub nom. Alexander v. Director, OWCP, 297 F.3d 805, 35 BRBS 25(CRT) (9th Cir. 2002), the BRB had held it was rational for the ALJ to determine claimant’s disability based on the doctor’s opinion that used criteria from the edition of the Guides in effect in 1989—when the doctor rendered his opinion—because it represented state of the arts standards at that later point.

The BRB concluded, therefore, that the use of the 3rd Edition, as suggested by the claimant, because it was in effect at the time of his injury, was contrary to both the Department’s regulation and Alexander.

BRB: New Mexico Decision Instructive

Again stressing that the enactment of 33 U.S.C.S. § 902(10) was made with the understanding that the AMA would modify its Guides occasionally to keep up to date with the most current scientific and medical knowledge, the BRB found a decision of the Supreme Court of New Mexico instructive. In Madrid v. St. Joseph Hosp., 928 P.2d 250 (N.M. 1996), the state high court had interpreted similar language in the state workers’ compensation statute adopting the AMA Guides. In that dispute, N.M. Stat. Ann. § 52–1–24 required use of the “most recent edition” of the AMA Guides). The New Mexico Court found no impermissible delegation to the American Medical Association.

No Delegation of Power to AMA

Utilizing similar rationale, the BRB concluded that the mandate to use the AMA Guides for retiree benefits did not delegate power to the AMA. Instead, it merely prescribed the method by which doctors might calculate a retiree’s impairment. Moreover, stressed the BRB, Longshore Act participants were not the only persons utilizing affected by the AMA Guides. The AMA had not created the AMA Guides for Congress or the Longshore Act.

The BRB also disagreed with the claimant’s assertion that the regulatory phrase “most currently revised” caused a delegation violation. It noted that the AMA published the 2nd Edition of the Guides prior to the enactment of the 1984 Amendments to the Longshore Act. Congress clearly adopted that standard and acknowledged that the Guides would be “modified from time to time.” Indeed, said the BRB, the AMA had updated its work four times since the 2nd Edition. The BRB said it agreed with the court’s rationale in Madrid:

Periodic revisions of the standard will not transform an otherwise constitutional and non-delegatory statutory provision into an unconstitutional delegation of legislative power. Where a standard is periodically updated because of new scientific developments recognized by eminent professionals interested in maintaining high standards in science, the standard may still be adopted by the Legislature.

Madrid, 928 P.2d at 259.

Accordingly, said the BRB, the use of the most recent AMA Guides for retiree benefits did not deprive an ALJ of his or her decision-making authority. Section 2(10) of the Act and Section 702.601(b) of the regulations permissibly required use of the “most recent version” of the AMA Guides, as of the time the doctor rendered a rating opinion. In short, Protz was not persuasive. The ALJ’s decision was affirmed. Practitioners should note that no notice of appeal has been filed in the case.

Commentary

The BRB’s decision in Pierce has at least five implications that are relevant to those within the workers’ compensation world.

Pierce is a clear alternative argument to Protz.

The BRB’s Pierce rationale stands as a cogently worded alternative to that offered by the Protz majority and to the subsequent majority decision of a divided Oklahoma Supreme Court in Hill v. American Medical Response, 2018 OK 57, 423 P.3d 1119 (June 26, 2018). In Hill, the Court held the use of similar “current edition” language in the Oklahoma statute was not an impermissible delegation of legislative power, but only because the statute dictating the use of the “current edition” of the AMA Guides had been enacted after the AMA’s publication of the 6th Edition of the guides. For my additional discussion of Protz and Hill, click here and here.

Pierce could aid courts in six additional states that utilize “most current version” or “most recent edition” language.

To the extent that the BRB’s Piercerationale is taken up by an appropriate court in one of the other six other states that utilize a variation of the “must current version” or “most recent edition” language , a court in one of those six jurisdictions —Alaska, Arizona, Illinois, Louisiana, Wyoming, and Kansas—would likely find the language constitutionally acceptable.

In some states, Pierce may assist the AMA in its evolution toward annual revisions of the 6th Edition of the Guides.

Courts in those same six states would also likely approve of the use of the new editorial policy announced last year by the AMA, which will allow annual updates to the 6th Edition of the AMA Guides, instead of publishing a new 7th Edition.

As has been widely discussed elsewhere [for my own August 2020 commentary on the new editorial procedure, click here], the AMA signaled last year that it will not develop a “7th Edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Instead, it will transition to a digital format that should allow a relatively seamless annual update to the 6th Edition, to reflect advancements in medicine. Updates will occur only after consideration by a broad-based AMA Guides Editorial Panel that allows for input and discussion from relevant stakeholders.

The AMA admits that the new procedure will affect impairment ratings only in those states that utilize the 6th Edition, either because the state uses language similar to that in the Longshore Act, or, alternatively, its statute clearly specifies the use of the 6th edition. By my count, that number is 14 [see Larson’s Workers’ Compensation Law, § 80.07].

Of that number, Pennsylvania has already signaled that any changes adopted by the AMA after its legislature enacted the “Protz fix (designating the 6th Edition as the edition to be utilized) won’t affect claims in the Keystone state. The jury is out with regard to Oklahoma, New Mexico, and the six other states mentioned above that utilize the “most recent” language within their state acts. For example, does 6th Edition mean the edition in place before the AMA’s new editorial procedure? It is difficult to say. My bet is that most of these states would allow use not only of the original 6th Edition, but any annual updates to it.

Pierce has less to say in those states that specify the use of the 6th edition.

Five (of the 14) states—Montana, North Dakota, Rhode Island, South Dakota, and Tennessee—specify that physicians must utilize the 6th Edition of the AMA Guides. As to the AMA’s new editorial procedure, I think an argument—perhaps not a strong one—can be made that the annual updates to the 6th Edition should not apply. Here’s the argument’s thread: Legislators in these 5 states had the opportunity to use a phrase similar to those in the “other 9.” That is to say, they could have utilized a term such as “the most current edition.” Instead, they specifically chose to specify the “6th Edition.” Nor did they aid qualifying language—e.g., “as amended or updated from time to time.” Without qualifying language, the court should not supply any additional verbiage.

Pierce will have little effect in two-thirds of the states that do not view the 6th Edition as authoritative.

Neither Pierce nor the new AMA editorial procedure should have any significant effect in more than two-thirds of the states. Understand that I’m not arguing that Pierce is a tempest in a teapot. Nor am I contending that the AMA’s new editorial procedure is not an important improvement.

Still, 36 states do not treat the 6th Edition of the AMA Guides as authoritative. Literally half of that number specify the use of one of the earlier editions of the guides. The other half have adopted state-specific impairment guidelines. To be sure, in many states within this last group, a physician may craft his or her opinion utilizing the 6th edition, but the court need not give that opinion any more credence than another opinion prepared using the 4th or 5th, and may disregard the opinion altogether to the extent that it fails to comply with the state-specific impairment rating process.

It also bears noting that quite a few of the states that shun the use of the 6th Edition of the AMA Guides are populous. California, Texas, New York, Florida, and North Carolina either an edition other than the 6th, or utilize a state-specific standard. So, while the AMA may argue that use of the 6th Edition is growing, it is still mandated in only a minority of claims filed within the United States.