The State of Iowa joins many other States who will not implement the 6th Edition of the AMA Guides. This follows mounting criticism against the use of the 6th Ed. of the AMA Guides to determine workers’ compensation disability.
Under emergency rule making authority The Iowa Commission promulgated the following rule.
“AMA GUIDES – Rule 876—2.4 has been amended as follows:
876—2.4(85,86) Guides to evaluation of permanent impairment. The Guides to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2)“a” to “s.” The extent of loss or percentage of permanent impairment may be determined by use of this guide the Fifth Edition of the guides and payment of weekly compensation for permanent partial scheduled injuries made accordingly. Payment so made shall be recognized by the workers’ compensation commissioner as a prima facie showing of compliance by the employer or insurance carrier with the foregoing sections of the Iowa workers’ compensation Act. Nothing in this rule shall be construed to prevent the presentations of other medical opinions or guides or other material evidence for the purpose of establishing that the degree of permanent disability to which the claimant would be entitled would be more or less than the entitlement indicated in the Fifth Edition of the AMA guide guides.”
Sunday, April 6, 2008
Thursday, April 3, 2008
Robbing The People of Justice
On Tuesday the voters of Wisconsin changed the configuration of the State’s Supreme Court from liberal to conservative in a referendum vote to oust Justice Louis Butler. In a highly contested election, divided heavily between conservative business interest groups and public interest organizations, by a mere 20,000 votes, a liberal Democratic was removed from office and the Court will now have a 4-3 conservative majority.
The fiercely fought and costly ($4 million) election brings to light, once again, the issues involved in conducting judicial elections. Last year over $3.1 million dollars was spent by special interest groups to challenge yet another judicial election in Wisconsin. Elections of judiciary are the case in 39 States who elect some, if not all, of their appellate Judges.
The Wisconsin Supreme Court, in nationally recognized opinions: has recognized manufacturers’ liability in latex glove litigation; guarded patients from medical malpractice; and protected children from the problems associated with lead paint. The Court defined the standard for “enterprise liability” in an effort to guard the public from hazardous and toxic substances.
Private financing of judicial elections are problematic and bring to the forefront a need for review of the entire process to maintain the integrity of the judicial system. As Justice Butler remarked in his concession speech, "We cannot continue to see elections like last year 's and this year 's, and expect people to maintain their faith in our judicial system, " Butler said. "If we rob people of their faith in that system, we've robbed them of justice. "
The fiercely fought and costly ($4 million) election brings to light, once again, the issues involved in conducting judicial elections. Last year over $3.1 million dollars was spent by special interest groups to challenge yet another judicial election in Wisconsin. Elections of judiciary are the case in 39 States who elect some, if not all, of their appellate Judges.
The Wisconsin Supreme Court, in nationally recognized opinions: has recognized manufacturers’ liability in latex glove litigation; guarded patients from medical malpractice; and protected children from the problems associated with lead paint. The Court defined the standard for “enterprise liability” in an effort to guard the public from hazardous and toxic substances.
Private financing of judicial elections are problematic and bring to the forefront a need for review of the entire process to maintain the integrity of the judicial system. As Justice Butler remarked in his concession speech, "We cannot continue to see elections like last year 's and this year 's, and expect people to maintain their faith in our judicial system, " Butler said. "If we rob people of their faith in that system, we've robbed them of justice. "
Tuesday, April 1, 2008
National Asbestos Awareness Week
Senate Resolution 462 designates the first week of April 2008 as National Asbestos Awareness Week. The proclamation urges public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure.
Asbestos, a know carcinogen, is still used in the US and has not been banned. "Asbestos" is a generic name given to a fibrous variety of six naturally occurring minerals that have been used for decades in the development of thousands of commercial products. The term "asbestos" is not a mineralogical definition but a commercial name given to a group of minerals that possess high tensile strength, flexibility, resistance to chemical and thermal degradation, and electrical resistance. These minerals have been used in many products, including insulation and fireproofing materials, automotive brakes and textile products, and cement and wallboard materials. It has recently been found in toys.
Asbestos exposure affects both workers and their families. The legacy of asbestos related disease continues: mesothelioma, lung cancer and asbestos medical conditions continue to be diagnosed. Litigation continues against the asbestos manufaturers, distributors and health research groups. Ill conceived legislation by the insurance industry failed to survive Congressional debate.
The Workers’ Compensation system continue to fail in delivering benefits to asbestos exposed workers due to latency and coverage issues complicated by bureaucratic nightmares. Hopefully, public awareness will draw attention to crafting a better system to deliver benefits to injured asbestos workers than the present workers’ compensation system crafted in 1911, decades before the disease become recognized as an occupational disease.
Asbestos, a know carcinogen, is still used in the US and has not been banned. "Asbestos" is a generic name given to a fibrous variety of six naturally occurring minerals that have been used for decades in the development of thousands of commercial products. The term "asbestos" is not a mineralogical definition but a commercial name given to a group of minerals that possess high tensile strength, flexibility, resistance to chemical and thermal degradation, and electrical resistance. These minerals have been used in many products, including insulation and fireproofing materials, automotive brakes and textile products, and cement and wallboard materials. It has recently been found in toys.
Asbestos exposure affects both workers and their families. The legacy of asbestos related disease continues: mesothelioma, lung cancer and asbestos medical conditions continue to be diagnosed. Litigation continues against the asbestos manufaturers, distributors and health research groups. Ill conceived legislation by the insurance industry failed to survive Congressional debate.
The Workers’ Compensation system continue to fail in delivering benefits to asbestos exposed workers due to latency and coverage issues complicated by bureaucratic nightmares. Hopefully, public awareness will draw attention to crafting a better system to deliver benefits to injured asbestos workers than the present workers’ compensation system crafted in 1911, decades before the disease become recognized as an occupational disease.
Thursday, March 27, 2008
Governmental Opposition Swells Against Implementation of the 6th Edition of the AMA Guides
State governments throughout the United States are now delaying implementation of the 6th Edition of the AMA guides as a standard to determine permanent disability. The governmental officials are heeding warnings that the guides do not carry out the legislative intent of the workers’ compensation acts which is to provide a remedial social insurance benefit to injured workers.In 1911 workers bargained away the right to seek redress in the civil litigation system for a more limited benefit structure called workers’ compensation. Workers’ compensation was the original “no fault system” that was to provide limited benefits in a summary and efficient fashion to disabled workers.
Soon there was an attempt by Industry to modify the system in the 1970’s to create a standardized system of measuring disability and reduce even the meager benenfits offered. The AMA guides were drafted and adopted in several state to measure permanent disability. Presently many jurisdictions utilize the 5th Edition to determine disability.
The 6th edition were published in late 2007s under the guidance of Christopher R. Brigham M. D. whose company, Brigham and Associates conducts medical evaluations. Dr. Brigham contends that only 40% of those totally disabled are really unable to perform meaningful work. It has been reported that if the new guides are adopted then permanent disability will no longer be recognized in 70% of the present claims.
At a recent meeting of the IAIABC (The International Association of Industrial Accident Boards and Commissions) , an organization composed of industrial boards and commissions throughout the United States, but open to membership from dues paying members, which include many of the workers’ compensation insurance carriers in the United States, there was “a lively discussion” concerning use of the new Guides.
"Dr. Russell Travis, Medical Director for the Kentucky Office of Workers’ Claims, suggested the 6th Edition makes improvements in guiding impairment rating, particularly in consistency of ratings across organ systems. However, Dr. Travis highlighted some of the perceived weaknesses he found in the AMA Guides; his presentation pointed to issues of apportionment, pain, and the qualifications required to perform a rating as still unresolved. The strong debate among the rating physicians demonstrated the lack of consensus on techniques for impairment rating and the role of the AMA Guides."
Joining the chorus of growing opposition is The Workplace Injury Law And Advocacy Group. In an article authored by Todd McFarrin, the President-Elect of CAAA, he cautions that:
“By using impairment ratings from the Guides, essentially as a proxy for disability, permanent disability benefits are being slashed. The use of impairment and the eclipse of disability as the relevant permanent consequence of an injury in workers’ compensation is a dangerous trend for injured workers. The latest [6th] edition of the Guides accelerates this decline.”
How to determine permanent disability has always been an agonizing proposition to all who participate in the system. While State legislatures and the Federal government would be pleased to adopt an objective standard, such a goal is illusionary. One cannot be substituted for subjective nature of pain and restrictions of movement in the human environment.
While the economy may be struggling, it is anticipate that the outrage of Labor to the implementation of the restrictive 6th Edition to determine permanent disability will only increase. The objections will become louder and stronger as Industry tries to renege on its 1911 bargain called workers’ compensation.
Tuesday, March 25, 2008
California Considers Taxing Workers' Compensation Attorneys Fees
If Governor Arnold Schwarzenegger has his way the battered advocacy system for injured workers in California is about to get hit again. The Governor recently proposed charging a sales tax on professional fees in the State of California. He indicated that he is well aware of the loopholes in the present system and would like to end them in order to recover money for California sagging state revenues.
Charging a “sales tax” for professional fees is a concept that the Social Security system has imposed for several years by charging a user fee (6.3%) to successful attorneys who receive favorable awards for their clients before that agency. In fact, the concept of Social Security charging a fee to have Medicare review proposed settlements has often been rumored as they are analogous to IRS private opinions.
While no definite proposal has been offered to the California legislation, the Governor will obviously need to reach into someone’s bank account to keep California’s budget afloat.
Charging a “sales tax” for professional fees is a concept that the Social Security system has imposed for several years by charging a user fee (6.3%) to successful attorneys who receive favorable awards for their clients before that agency. In fact, the concept of Social Security charging a fee to have Medicare review proposed settlements has often been rumored as they are analogous to IRS private opinions.
While no definite proposal has been offered to the California legislation, the Governor will obviously need to reach into someone’s bank account to keep California’s budget afloat.
Sunday, March 23, 2008
Collecting Both Social Security Disability Insurance And Workers’ Compensation Benefits Generates Inequality of Benefits
A recent study by the federal government reports that some disabled workers who receive workers' compensation or public disability benefits may receive less money than their counterparts. The reason why this phenomenon occurs is because the Social Security benefit computation is designed to replace more of the lower earner’s pre-retirement or predisability earnings than a higher earner’s.
The Social Security disability system was established in 1956 to pay cash benefits to those workers who sustained long-term disabilities and were insured for coverage. On the other hand, state workers compensation systems had been in place since 1911 and may be combined with other public disability benefits in addition to Social Security benefits.
The Social Security system, unlike state workers compensation programs, provides a nationally distributed benefit to over 8 million disabled-worker beneficiaries. State public disability benefits are paid under numerous laws including federal, state or local government were plans that provide compensation for medical conditions that are not work related. Some of them may be short-term such as state temporary disability benefits.
As of December 2005, the date that the study utilized for collection of data, there were 8,305,702 disabled-worker beneficiaries in the Social Security program. Of those beneficiaries, 1,440,772 had some past or present connection to workers compensation or public disability benefits and 798,476 at a current connection to workers' compensation or public disability benefits.
In 1984 Congress amended The Social Security Amendments of 1956 and required that workers’ compensation benefits were to be offset against the federal Social Security disability insurance benefit. In 1985 the offset was eliminated and it was again reinstituted in 1989 by Congress. Further amendments in 1996 to The Omnibus Budget Reconciliation Act Of 1981 extended the offset provision to public disability benefit programs. However, Congress excluded the offsets of workers’ compensation and public disability beneficiaries who are receiving Social Security disability benefits in those states where the State took the offset. These have been named reverse offset states. The state law needed to be in effect as of February 18, 1981. Presently there are 16 states and Puerto Rico that are reverse offset states.
The recent study involving 18 month period from January 2003 through June 2004, identifies that a proximately 11% of all Social Security disability beneficiaries were also entitled to receive state workers compensation for public disability payments. It reported that those who receive combined benefits were most likely to be male, high earners, older it retirement and from the Western states.
The report concludes that the earnings replacement rate for disability insurance beneficiaries under the Social Security system, as measured by the ratio of the monthly disability insurance benefits to the average indexed monthly earnings, demonstrates that disabled workers without workers’ compensation or public disability benefits had higher replacement rates. Therefore, collecting multiple benefits may create an economic disparity.
“The Social Security benefit computation is designed to replace more of a lower earner's preretirement or predisability earnings (average indexed monthly earnings) than a higher earner's. This is done by "bend points" in the primary insurance amount formula, which create three earnings brackets. Earnings up to the first bend point are replaced at 90 percent; earnings between the first and second bend point, at 32 percent; and earnings above the second bend point, at 15 percent, up to the taxable maximum. The three brackets are a convenient way to group workers by income (represented here by AIME). This grouping also helps distinguish differences in replacement rates, which are largely determined by the earnings bracket in which the worker belongs.”
The Social Security disability system was established in 1956 to pay cash benefits to those workers who sustained long-term disabilities and were insured for coverage. On the other hand, state workers compensation systems had been in place since 1911 and may be combined with other public disability benefits in addition to Social Security benefits.
The Social Security system, unlike state workers compensation programs, provides a nationally distributed benefit to over 8 million disabled-worker beneficiaries. State public disability benefits are paid under numerous laws including federal, state or local government were plans that provide compensation for medical conditions that are not work related. Some of them may be short-term such as state temporary disability benefits.
As of December 2005, the date that the study utilized for collection of data, there were 8,305,702 disabled-worker beneficiaries in the Social Security program. Of those beneficiaries, 1,440,772 had some past or present connection to workers compensation or public disability benefits and 798,476 at a current connection to workers' compensation or public disability benefits.
In 1984 Congress amended The Social Security Amendments of 1956 and required that workers’ compensation benefits were to be offset against the federal Social Security disability insurance benefit. In 1985 the offset was eliminated and it was again reinstituted in 1989 by Congress. Further amendments in 1996 to The Omnibus Budget Reconciliation Act Of 1981 extended the offset provision to public disability benefit programs. However, Congress excluded the offsets of workers’ compensation and public disability beneficiaries who are receiving Social Security disability benefits in those states where the State took the offset. These have been named reverse offset states. The state law needed to be in effect as of February 18, 1981. Presently there are 16 states and Puerto Rico that are reverse offset states.
The recent study involving 18 month period from January 2003 through June 2004, identifies that a proximately 11% of all Social Security disability beneficiaries were also entitled to receive state workers compensation for public disability payments. It reported that those who receive combined benefits were most likely to be male, high earners, older it retirement and from the Western states.
The report concludes that the earnings replacement rate for disability insurance beneficiaries under the Social Security system, as measured by the ratio of the monthly disability insurance benefits to the average indexed monthly earnings, demonstrates that disabled workers without workers’ compensation or public disability benefits had higher replacement rates. Therefore, collecting multiple benefits may create an economic disparity.
Tuesday, March 11, 2008
The Future of Spitzer’s NY Workers’ Compensation Reform Effort and the AMA Guides 6th ed.
With Governor Spitzer now embroiled in a major scandal that may end in his resignation as Governor of the State of New York, all eyes in the workers’ compensation arena are now focused on his reform efforts. On February 27, 2007 shortly after taking office he signed landmark legislation to overhaul the NY system.
The legislation mirrors the concerns of Labor and Industry throughout the country about a workers’ compensation system bogged down in administrative bureaucracy and failing to meet the medical and permanent disability needs of injured workers. The new NY act is a skeleton on a program that will be reconstructed by regulations and administrative memos.
Injured workers in NY, as in other parts of the country, are concerned of the implantation of the new AMA Guidelines as the criteria for determining disability. It has been remarked that the new AMA Guidelines 6th edition will eliminate at 60% of all findings of disability resulting in no benefits for those injured workers. The Business Council on NY has been advocating for their implementation.
It is doubtful that there will be a change of course in NY. The NY legislation was originally drafted under the Republication Administration of Governor Pataki and merely passed in the Democratic Administration of Spitzer in about 45 days after he took office. The political deal was struck NY long before the Spitzer Administration, but the legislation is only a skeleton that will require additional crafting and implementation.
NY mirrors the same issues of other jurisdictions. Unfortunately implementing the AMA Guidelines 6th edition will not solve the problem in NY or elsewhere. It is like taking a wheel off a vehicle with 2 flat tires already. Yes the system needs reform, but one that will be crafted as the fathers of workers’ compensation legislation intended, which is a system that provides expeditious and adequate compensation for injured workers.
The legislation mirrors the concerns of Labor and Industry throughout the country about a workers’ compensation system bogged down in administrative bureaucracy and failing to meet the medical and permanent disability needs of injured workers. The new NY act is a skeleton on a program that will be reconstructed by regulations and administrative memos.
Injured workers in NY, as in other parts of the country, are concerned of the implantation of the new AMA Guidelines as the criteria for determining disability. It has been remarked that the new AMA Guidelines 6th edition will eliminate at 60% of all findings of disability resulting in no benefits for those injured workers. The Business Council on NY has been advocating for their implementation.
It is doubtful that there will be a change of course in NY. The NY legislation was originally drafted under the Republication Administration of Governor Pataki and merely passed in the Democratic Administration of Spitzer in about 45 days after he took office. The political deal was struck NY long before the Spitzer Administration, but the legislation is only a skeleton that will require additional crafting and implementation.
NY mirrors the same issues of other jurisdictions. Unfortunately implementing the AMA Guidelines 6th edition will not solve the problem in NY or elsewhere. It is like taking a wheel off a vehicle with 2 flat tires already. Yes the system needs reform, but one that will be crafted as the fathers of workers’ compensation legislation intended, which is a system that provides expeditious and adequate compensation for injured workers.
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