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Hiring of AMA Guides Editor Sparks N.Y. Debate

New York — Hiring of AMA Guides Editor Sparks N.Y. Debate: Top [02/13/08]

The New York Insurance Department, igniting cries of betrayal by labor advocates who negotiated last year's reform bill, has hired the senior contributing editor for the Sixth Edition of the American Medical Association (AMA) impairment guides to correlate differences between two editions of the guides and the state's own 1996 guidelines for rating impairment as a function of wage loss.

The state approved a $162,500 contract with Dr. Christopher Brigham on Dec. 20, said Bruce Topman, executive director of the Workers' Compensation Reform Task Force. Brigham will rate a sample of workers' compensation injuries for impairment based on the Fifth and Sixth editions of the AMA Guides for the Evaluation of Permanent Impairment and correlate those with existing New York law.

Topman said the project's first phase, due for completion at the end of March, calls for developing the correlation to produce a set of New York-specific multipliers that could then be drawn from ratings in the Fifth or Sixth editions to produce an "AMA-like" set of guides for future awards based on wage loss.

The second phase of Brigham's contract calls for creating a "mapping" system for use of the ratings as a factor in a broader context to determine loss of wages.

"This is not an effort to implement AMA guidelines," Topman said. "We're trying to see what relationship the ratings have to the New York ratings we've used in the past. If you assume the AMA rating is lower than the New York rating, the question would be what multiplier would be required to make them equivalent to the New York number. That's the idea."

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

News of Brigham's contract with New York state leaked out at an International Association of Industrial Accident Boards and Commissions (IAIABC) conference on the new AMA guides in Orlando Feb. 7 and 8. Brigham was the featured speaker.

The news sparked allegations of betrayal from the New York Workers' Compensation Alliance, a group of claimants' attorneys and other workers' advocates that insisted the promise that AMA guides would never be used in New York was a key concession in a deal that also capped the length of the permanent partial disability awards for the first time in the state's history.

The closed-door negotiations in January and February of 2007 were held primarily between the Business Council of New York State and the AFL-CIO of New York.

Art Wilcox, a key negotiator for the AFL-CIO, said Tuesday the union did agree to the use of objective guidelines as a tool to determine wage loss. But he said AMA impairment ratings were never part of the deal.

"This whole thing seems like Pearl Harbor to us," Wilcox said. "This is a wage-loss state. We have to come up with objective guidelines that measure wage loss. AMA doesn't fit into that."

Topman, who joined the administration of New York Insurance Superintendent Eric Dinallo, said he wasn't involved in the negotiations that produced bill A 6163, the sweeping reform package Spitzer signed into law last March 13.

"My understanding (of the negotiations) was that the guidelines would be AMA-like," Topman said. "Whether you like the AMA guides and the numbers they produce, the system is designed to provide some fairness to all injured workers, so that one worker with the same injury is treated the same as all other workers."

Topman said coming up with percentages of impairment for comparison among workers who may have sustained injuries to different parts of their bodies helps ensure there is "no disparity and no discrimination."

"That's the advantage of an across-the-board system," he said.

Troy Rosasco, co-chairman of the Workers' Compensation Alliance, said regardless of the terms regulators used to describe the project, the level of betrayal to the deal reached by Spitzer's negotiators is the same.

"We find no difference between AMA guides and supposed AMA-like guides," he said. "It's all Insurance Department semantics to cover up what they said they wouldn't do during the negotiations."

Rosasco said his group has filed a public records request for Brigham's contract and all related documents and is exploring whether the selection meets state legal requirements for soliciting professional services.

"We'll get the documents and determine what, if any, legal avenues we have to contest the hiring of Dr. Brigham," Rosasco said.

The debate mirrors the political feud in South Carolina, where Gov. Mark Sanford has landed in state and federal court over his 2007 executive orders mandating the strict application of the AMA guides in determining disability.

The South Carolina Workers' Compensation Commission has refused to follow the orders, saying they routinely consider AMA guides as a factor. But the commission said it also is required by state law to consider occupation, age and other factors in translating the level of impairment affecting individual employee's ability to reenter the workforce.

Brigham confirmed Tuesday that he has been hired by the New York Insurance Department to conduct a research project similar to studies he did for the states of California and Colorado, which involved comparing various approaches to assessing impairment.

"The AMA Guides are used by the majority of workers' compensation jurisdictions to define permanent impairment and by some as an initial determinate of permanent disability," Brigham said in a statement released to WorkCompCentral. "Jurisdictions vary in how they utilize the impairment ratings, with some, such as the State of California, making a series of adjustments to calculate a permanent disability rating."

He said "our understanding of impairment and disability has evolved" with the development of each new edition of the guides.

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.

Rosasco argued that independent medical examinations (IMEs) are normally paid for by carriers and represent the defense side in a workers' claims dispute.

He said New York workers' compensation judges have traditionally used impairment as a starting point and made distinctions for occupation. He said wage loss based on a back injury would differ dramatically between an office worker and a brick layer.

Rosasco said the idea of mapping the total effect of the injury in a graphical representation first surfaced in a presentation by New York State Workers' Compensation Board Chairman Zachary Weiss last week.

"The idea of mapping is going to take the discretion out of the hands of workers' compensation law judges and essentially turn our system into a…chart, which then leads to a set equation for determining the amount of lost-wage benefits an injured worker gets."

The controversy emerged as Spitzer's task force on medical treatment best practices is preparing to release its report on how to apply a new set of treatment guidelines it approved last year.

Those guidelines mix some New York-specific treatment guidelines with some sections taken from the American College of Occupational and Environmental Medicine (ACOEM).

Topman said the treatment guidelines have no relationship to the impairment guides Brigham is reviewing. He said the study is "just one approach" regulators are considering in the new mapping strategy.

The Alliance said on its website the debate over Brigham's hiring will be aired at a Task Force meeting scheduled for Friday morning.

–By Michael Whiteley, WorkCompCentral Eastern Bureau Chief