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Labor Department Should Revise Its Workers’ Compensation Guidelines

June 9, 2016

Labor Department Should Revise Its Workers’ Compensation Guidelines

Guidelines Are Deeply Flawed and Deprive Workers of Fair Compensation, Public Citizen Petition Says

WASHINGTON, D.C. – The U.S. Department of Labor should revise the guidelines it uses to calculate workers’ compensation permanent disability payments, Public Citizen said in a petition (PDF) filed today. Flaws in the guidelines result in unjust compensation of injured and disabled workers, according to empirical research.

The Labor Department uses the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition (AMA Guides, Sixth Edition) to make workers’ compensation disability determinations. Instead, it should use the AMA Guides, Fifth Edition, or rely on a different set of guidelines, Public Citizen said.

“The Sixth Edition is a deeply flawed document with a series of fundamental problems that – individually and in the aggregate – deprive injured workers of compensation they should receive under the Federal Employees Compensation Act,” said Robert Weissman, president of Public Citizen and author of the petition. “The Sixth Edition’s anti-claimant biases might be defensible if they were rooted in science or empirical study. But, by and large, they are not. Instead, they represent the preferences of a small and unidentified group operating under the aegis of the American Medical Association but outside the transparency norms of the medical profession.”

The problems with the Sixth Edition are manifold. The Sixth Edition confuses the medical standard of “impairment” with the legal standard of “disability.” As a result, important factors relating to how an injury affects a person’s ability to work are ignored. In addition, the Sixth Edition wrongly discounts subjective factors – such as pain and range of motion in certain contexts – in assessing impairment or disability. These are key issues that affect a person’s ability to work, and they are either ignored or improperly discounted.

A further problem with the Sixth Edition is that it abandons the longstanding workers’ compensation program emphasis on the medical judgment of treating physicians in disability determinations. Treating physicians are in the best position to properly diagnose their patients and are most familiar with reductions in their patients’ functional capabilities due to injury or illness. In the Fifth Edition, treating physician reports are considered reliable. But in the Sixth Edition, treating physician reports are viewed as inherently biased, on the grounds that treating physicians are not “independent.”

Though it was met with immediate criticism upon publication, the Sixth Edition was adopted by the Department of Labor without any prior notice and comment or any opportunity for public comment and debate.

In addition, there are concerns with the editorial development of the Sixth Edition. Notably, it fails to list all of the authors and editors for all chapters – a significant departure from every previous edition. The section heads are the only contributors disclosed. The secrecy surrounding authorship and review makes it impossible to judge claims of bias.

Public Citizen’s petition urges the U.S. Office of Workers’ Compensation Programs Division of Federal Employees’ Compensation to rely on the Fifth Edition of the AMA Guides until new transparent, empirically based guidelines can be established.