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Backlash against the AMA – saving injured workers in New York

The following recent article in workerscompcentral.com resulted from the concerted effort of injured workers representatives, attroneys, unions and others to hold back and literally repel the anti-injured worker attack made by the AMA in New York (Thank you to the Workers Compensation Alliance, the Injured Workers Bar Association and the fine article published by WorkCompCentral.com):

 New York Insurance Superintendent Eric Dinallo has cancelled a contract with Dr. Christopher R. Brigham to review the impact of the American Medical Association (AMA) impairment guides on state workers' compensation claims in the face of strident opposition from the AFL-CIO and claimants' attorneys.

 Bruce Topman, executive director of the Workers' Compensation Reform Task Force launched last year by former Gov. Eliot Spitzer, confirmed a report of the cancellation Friday. He said the task force will come up with new plans for adopting impairment guides for use as part of the state's year-old workers' compensation reforms.

Brigham is senior contributing editor for the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment. He was hired late last year to evaluate New York workers' compensation cases based on a comparison of the fifth and sixth editions of the AMA guides and New York's state-specific guides adopted in 1996.

Topman said Dinallo briefed AFL-CIO President Denis Hughes and Art Wilcox, a key AFL-CIO negotiator in Spitzer's 2007 reform efforts, on his decision at a meeting on Wednesday.

Wilcox, who did not return a telephone call Friday, said previously the union felt betrayed because of a promise made during negotiations that the controversial guides would not be a part of New York's reforms.

"It appears to us those questions about the rightness of having Dr. Brigham do this became somewhat of a distraction to moving the process forward," Topman said. "The objective is to get good, fair impairment guidelines. If you weigh the overall objective, we will look forward to a better result for the workers if the distraction is put aside."

Topman said the state will pay a portion of Brigham's $162,500 contract and is reviewing a bill submitted by the physician and independent medical examiner. Topman said is it is premature to discuss the amount of the final payment.

Brigham said Friday he had done extensive work on the research assignment and confirmed he had been asked to scrap the project about a month ago.

He cited a running attack on the guides and Brigham's involvement on a blog published by the New York Workers' Compensation Alliance, a group of claimants' attorneys and other workers' advocates that posted an artist's rendering of Pearl Harbor to illustrate the news of Brigham's hiring.

"It's most unfortunate that the New York Workers' Compensation Alliance has continued to provide erroneous information on their blog relating to the AMA guides and those involved in the study," Brigham said.

The Alliance posted notice of the contract cancellation on Friday and said the decision will end debate over use of the AMA guides. The Alliance earlier predicted the push for AMA guides in New York ended with Spitzer's resignation in March, following disclosure he was a customer of a high-dollar prostitution ring.

"The New York Workers' Compensation Alliance, along with our friends in New York Injured Workers' Bar Association and the New York State Trial Lawyers Association, can take the lion's share of the credit for knocking these unreliable and anti-worker guides out of the ballpark," the Alliance declared Friday.

"We were thinking of burying a copy of the Sixth Edition of the Guides in the cement at the new Yankees' Stadium so that millions of fans can stomp on them, but the engineers told us that this would hurt the structural integrity of the stadium," the blog continued.

Topman said Friday a guidelines advisory committee working with the task force will set a new direction for using impairment guides.

"We're going to resume our meetings of the advisory committee, and we're going to address various options for impairment guidelines," Topman said.

In a recent discussion with the New York State Workers' Compensation Board, John F. Burton, professor emeritus at the Rutgers School of Management and Labor Relations, recommended the state begin with its 1996 impairment guides and supplement them with an extensive new data on the impact of injuries on workers' wage-earning capacity and their lives. During questioning from board members, Burton called the basis of the AMA guides "hokum" and challenged assertions that they are evidence-based.

Troy Rosasco, co-chairman of the Alliance, said Friday he's been assured the task force will use the 1996 guides as a model and build from there.

"And that makes sense, because they've got to do something fast," Rosasco said. "They wasted a lot of time working on treatment guides and then going the AMA route. Now we're coming into court each and every day on cases under the new reform law. But we have no guidance."

The reforms Spitzer signed into law on March 13, 2007, imposed the first cap on permanent partial disability benefits, boosted the state's maximum weekly benefit for the first time since 1994, abolished the Second Injury Fund and called for an overhaul of the workers' compensation rate system.

This January, lawmakers approved Dinallo's recommendation the state retain the New York Compensation Insurance Rating Board (NYCIRB) to recommend loss costs and require insurers to file loss-cost multipliers reflecting overhead, profits, surcharges and other factors.

Dinallo would have to approve both the loss-costs and the multipliers.

The remaining pieces of the Spitzer reform package are an interim pharmacy fee schedule, final treatment guidelines and a decision on how impairment ratings will figure into disability awards.

Claimants' attorneys and the AFL-CIO adamantly opposed use of the AMA guides, saying they would reduce workers' awards and don't fit in a system based on wage loss.

And the Alliance repeatedly criticized the hiring of Brigham, because of his role in performing independent medical examinations (IMEs) on behalf of carriers and employers.

The Al liance's comments drew a "cease-and-desist" letter last month from Brigham and Phil Walker, an AMA guides lecturer and San Francisco-based defense lawyer, warning the Alliance of a potential lawsuit for libel. The Alliance fired back with allegations that Brigham and Walker were attempting to deprive the group of its First Amendment rights to free speech.

On April 23, Brigham said, he e-mailed the Alliance offering to help attorneys understand the role of the AMA guides in the disability process. He said he was told the message was forwarded to the Alliance chairman but never received a final response.

"In response to what I see on the blog, there are misreferences and content that indicates they are confusing impairment guides with disability awards," Brigham said. "They have misportrayed my involvement and my dedication and integrity."

Rosasco said the Alliance still is considering Brigham's offer.

The sixth edition of the guides has stirred controversy around the nation as a major departure from earlier editions. Critics warn the end result of the changes will be to significantly reduce impairment ratings, particularly in the area of spinal injuries.

Kentucky lawmakers last month voted to delay conversion from the fifth edition until Kentucky Office of Workers' Claims Executive Director Dwight Lovan can determine whether they will have a significant impact on injured workers. A similar bill is pending in a Vermont House-Senate conference committee.

Brigham, as well as the preambles to the fifth and sixth editions of the guides, emphasize that they are only to be used to calculate impairment and that other factors, such as age and occupation, must be considered in determining disability on a case-by-case basis.

Brigham also is editor of the Guides Newsletter and the Guides Casebook and has performed several thousand independent medical and impairment evaluations, according to his resume. He is a founding director of the American Board of Independent Medical Examiners.

Brigham also has a business relationship with WorkCompSchool, a division of WorkCompCentral Inc., to provide instruction on the use of AMA guides.

–By Michael Whiteley, WorkCompCentral Eastern Bureau Chief

mailto:mike@workcompcentral.com

 

 

 

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