Opinion Mondays: The AMA is on Another Collision Course With Protz

The first session at tomorrow afternoon’s virtual conference, sponsored by Workers’ Compensation Institute, has really piqued my interest. Entitled, “THE NEW AMA Guides®” (hereinafter “the Guides”), it begs the question: “When will the 7th Edition of the Guides be released?” If I understand the AMA’s new procedure, announced back on March 9, 2020, and to be discussed tomorrow, the answer is never. The AMA’s plan, according to Douglas W. Martin, M.D., one of two panelists set for Tuesday’s session, “is not to create a seventh edition, but to continuously update the guides to reflect the current science and best practice of medicine” (as quoted in an excellent article published last week by WorkcompCentral).

Well, what could possibly be wrong with that idea? I’d say, “Nothing, save two significant issues.” First, the AMA’s proposed method of “updating” the 6th Edition on a rolling basis flies in the face of Pennsylvania’s Protz II decision [see Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (Pa. 2017)], as well as the reasoning utilized by the Supreme Court of Oklahoma in Hill v. American Medical Response, 2018 OK 57 (June 26, 2018)]. Second, assuming the AMA can finesse the constitutional issues detailed in Protz II and Hill— and, utilizing this “new” procedure, I don’t think it can — the existing 6th Edition of the Guides is still only authoritative in 14 states. Updating the 6th edition, therefore, won’t have any direct impact on impairment decisions made in the other 36 jurisdictions.

The Protz II Problem

Since barrels of ink and toner have been spilled in the discussion of Protz II, and the legislation to deal with its holding (including my own comments here, here, here, and here), I won’t delve deeply into the case. In short, prior to Protz, Section 306(a.2) of the Pennsylvania’s Workers’ Compensation Act [77 P.S. § 511.2(1)] required physicians to apply the methodology set forth in “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). At the time that provision was passed into law by the state legislature, the 4th was “the most current edition.” By the time, however, that Ms. Protz filed her claim, the 6th had become the most current edition.

The employer, of course, contended that the 6th, which many argue results in lower impairment ratings than the 4th, was the appropriate measure. The Supreme Court of Pennsylvania, in a split decision, found the statute violated the state’s constitutional requirement that all legislative power “be vested in a General Assembly” [Pa. Const. art. II, § 1]. The statute had impermissibly delegated the power to the AMA. The “Protz fix” was to delete “the most recent edition” language from the statute and substitute, in its stead, “the 6th edition.”

6th Edition Was in Place at Time Legislature Crafted the “Protz fix”

In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Commw. Ct. 2019), the state’s Commonwealth Court held that in enacting the “Protz fix,” the state’s General Assembly did not delegate its legislative authority, but rather adopted existing standards as its own in the exercise of its power to legislate. The Court stressed that since the 6th Edition existed at the time of the legislation designating the 6th Edition as the appropriate standard, there had been no delegation to the AMA at all. It seems clear to me that to the extent that the AMA makes changes to the 6th Edition, on a rolling basis, or otherwise, those changes would not be effective in Pennsylvania.

Oklahoma’s Hill v. American Medical Response Decision

At the time of Protz II, Pennsylvania was not the only state utilizing “the must current edition” (or similar) language in its workers’ compensation law. A number of others utilize similar language. For example, in Oklahoma, a physician’s opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the “current edition” of the AMA Guides[85A Okl. Stat. § 45(c)]. Such language does not violate Oklahoma’s constitution, according to the decision of a divided Supreme Court of Oklahoma in Hill v. American Medical Response, 2018 OK 57, 423 P.3d 1119 (June 26, 2018). Hill’s argument was virtually identical to that of Protz.

There was one important underlying factual difference, however. At the time that the Oklahoma Legislature passed its statute specifying the “current edition,” of the AMA Guides, the 6th Edition was already in existence. Thus, unlike the situation in Pennsylvania, the Court could say the Legislature was making policy on a standard that was clearly in place. It seems clear to me that to the extent that the AMA makes changes to the existing 6th Edition, those changes would not be effective in Oklahoma.

Other States Using “Most Recent Edition” Language

A number of other states use language similar to that in the Pennsylvania statute that was ruled unconstitutional in Protz II. Except for New Mexico, noted below, there have been no constitutional challenges reaching the appellate courts in any of these states. It remains to be seen what courts in these states would do in the face of an argument like that utilized by the claimants in Protz and Hill. Consider these statutes, however [see Larson’s Workers’ Compensation Law, § 80.07]:

• Alaska [Alaska Stat. § 23.30.190]: While the Alaska provision does not specify the use of the “most recent edition” of the AMA Guides, it requires — without specifying the edition — the use of the AMA Guides and provides further that when a new edition is published, the Board must hold a public meeting within 90 days of the publication “to select the date on which the new edition will be used [Alaska Stat. § 23.30.190(d)]. Based on that provision, most experts put Alaska in the “6th Edition” category.
• Arizona [Ariz. Admin. Code § R20–5–113B]: Physicians should rate impairment according to the “most recent edition” of the AMA Guides.
• Illinois [820 ILCS 305/8.1b]: For impairment, the “most current edition” of the AMA Guides must be utilized. The Guides are not the only factor, however, to be considered in Illinois.
• Louisiana [La. Rev. Stat. Ann. § 23:1221]: No benefits shall be awarded or payable unless the percentage of the anatomical loss of use or amputation …, is as established in “the most recent edition” of AMA Guides.
• Wyoming [Wyo. Stat. § 27–14–405]: An injured employee’s impairment shall be rated by a licensed physician using the “most recent edition” of the AMA Guides.

New Mexico Court Says No Improper Delegation to the AMA

New Mexico [NM Stat. Ann. § 52–1–24] requires use of the “most recent edition” of the AMA Guides. As noted in the dissent opinion in Protz II, the Supreme Court of New Mexico, in Madrid v. St. Joseph Hospital, 1996- NMSC 064, 122 N.M. 524, 928 P.2d 250, 256 (1996), found no unlawful delegation, recognizing that “many jurisdictions have articulated compelling rationales for allowing adoption of a private organization’s standards into a statutory scheme without finding a delegation of legislative authority … even when the standards are subject to periodic revision by the private entity.” Id.

In particular, the New Mexico Supreme Court explained that “[I]t is impractical to expect our Legislature to establish standards for evaluating physical impairment in workers’ compensation claims.” Id. at 258–59. Noting a possible lack of legislative resources to adopt independent medical impairment standards, the court surmised that the legislature chose to utilize objective standards established by the AMA, which is a highly respected and impartial entity that possesses the expertise for such a task. Id. at 259.

The New Mexico High Court stated, “prohibiting the Legislature from adopting the standards developed by experts within a rapidly changing medical specialty would obstruct the Workers’ Compensation Administration’s efforts to provide accurate evaluations of impairment.” Id. Recognizing that new scientific developments relevant to impairment evaluation demand modification, the court concluded that “periodic revisions of the standard will not transform an otherwise constitutional and non-delegatory statutory provision into an unconstitutional delegation of legislative power.” Id.

What If the AMA Could Finesse the Improper Delegation Argument?

Assuming the AMA can finesse the constitutional issues detailed in Protz II and Hill, which I think is unlikely, the medical organization (and others who desire to foist the 6th Edition upon injured workers) still face the fact that the current 6th Edition of the Guides is prescribed in only 14 states (assuming one includes the states just discussed above). Tweaking the 6th edition or, alternatively, radically changing it, but keeping the 6th Edition designation, therefore, won’t have any direct impact on impairment decisions made in the other 36 jurisdictions.

14 States Use the 6th Edition

While the AMA’s web site says “[m]ore than 40 states and several countries rely on the AMA Guides® as the accepted authority to assess and rate permanent loss of function,” it certainly isn’t true to say that all those states rely upon the 6th Edition. By my count, 14 states appear to require the utilization of the 6th Edition in determining impairment ratings (Alaska, Arizona, Illinois, Kansas, Louisiana, Montana, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, and Wyoming) [see Larson, § 80.07; see also Occupational Injuries and Illnesses, AMA Guides Handbook, Table 1 (LexisNexis, Matthew Bender)]. If, based on my arguments above, one removes Pennsylvania and Oklahoma from the list, that leaves a dozen, with 38 choosing some other way to assess an injured worker’s impairment rating.

10 States Use the 5th Edition; 6 Use the 4th, and 2 Use a Revision of the 3rd

Ten states still utilize the 5th Edition (California, Georgia, Hawaii, Iowa, Kentucky, Massachusetts, Nevada, New Hampshire, Vermont, and Washington) [Id.]. Six states utilize the 4th Edition (Alabama, Arkansas, Maine, Maryland, Texas, and West Virginia) [Id.]. Two states (Colorado and Oregon) continue to use a revision of the 3rd Edition [Id.].

18 States Use a State-Specific Impairment Rating System

Eighteen states, including some of the most populous, utilize their own state-specific guidelines in setting impairment ratings (Connecticut, Delaware, Florida, Idaho, Indiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, South Carolina, Utah, Virginia, and Wisconsin) [Id.]. To be sure, physicians in these states are permitted to refer to any of the editions of the Guides, and many do so. Still, a physician need not do so, and a medical report prepared pursuant to the Guides that ignores the guidelines or procedures utilized in this group of states can be ignored.

My point is not to criticize the 6th Edition of the Guides. Nor it is to argue that the changes that might be made from time to time by the American Medical Association might not make medical sense. But that isn’t the issue. What is at issue is whether an unelected body has the right and ability to set the rules and standards for making impairment rating decisions. The elected legislators in the various states have been charged with the responsibility of considering, debating, and passing the laws that govern their respective citizens — not the American Medical Association.

If the AMA, after allowing for discussion and debate among the various stakeholders, comes up with modifications to the current 6th Edition, those amendments can be considered and passed on (favorably or otherwise) by the Legislatures in the states that currently utilize the 6th edition. Those changes should only become effective, however, after they have been considered by the various state legislatures that utilize the 6th Edition of the Guides.

Other state legislatures are, of course, free to amend their laws and allow for the use of the 6th Edition, or any other set of guidelines they choose. Until then, however, if a physician in my home state of North Carolina (or Florida, New York, etc.) provides an impairment rating utilizing the 6th Edition, either in its current form, or in a form later determined to be appropriate by the AMA Editorial Board, and another physician in the same state chooses instead to follow the relevant state-specific guidelines, in most instances, the latter physician’s opinion will be followed. Again, let me say that I will be excited to hear more tomorrow about the new AMA plans.