CLIENT ALERT / Maine Court Decisions / Permanent Impairment in Workers' Comp Injuries Print

On October 21, 2008, the Maine Supreme Judicial Court issued two workers’ compensation decisions relating to assigning permanent impairment to workers’ compensation injuries.  Both cases will have a significant impact on the assessment of permanent impairment and the ultimate value of workers’ compensation claims.

Vivian Harvey v. H.C. Price Company et al 2008 Me. 161, (October 21, 2008)
The issue on appeal in Harvey was whether the Hearing Officer can authorize a numerical percentage rating to permanent impairment associated with a psychological component of a work injury despite the fact that the Guides to the Evaluation of Permanent Impairment (4th Ed. 1993) (“AMA Guides”) do not assign numerical impairment percentages to non-neurological psychological conditions.  Based in significant part on the Hearing Officer’s determination that the “AMA Guides” do allow such a numerical percentage assessment and based on judicial deference to the Hearing Officer’s interpretation and application of the Act and Board regulations, the Court affirmed the Hearing Officer’s decision.

Ms. Harvey injured her leg while working for the H.C. Price Company in 1999.  In 2003, the employer filed a Petition to Determine Permanent Impairment and a Decree issued concluding the employee had 5% whole body permanent impairment to her leg.  Thereafter, the employee filed a Petition to Determine Permanent Impairment based on depression that she had recently been diagnosed with attributable to the injury and at the same time, the employer filed a Petition for Review to cease paying workers’ compensation payments because the 5% whole body permanent impairment per the prior decree was below the 11.8% threshold and the employee was approaching the 312 week limit (for that date of injury).  Subsequently, the employee was evaluated by a Section 312 psychiatrist who assessed 7% permanent impairment based on her major depression disorder.  The Hearing Officer adopted the Section 312 Examiner’s opinion and added the 7% whole body permanent impairment due to the major depression disorder with the 5% permanent impairment that had been previously assigned for the leg injury.  Since this total amount (12%) was over the 11.8% threshold for that date of injury, the employer’s petition to stop paying benefits was denied and the employee’s petition to add psychiatric permanent impairment to her previous permanent impairment with her leg was granted.

This case was consolidated with a separate case (Capella v. Clean Harbor Environmental Services, WCB-07-618) and, although the oral argument was held jointly in both cases, the Court decided to resolve only the Harvey case at this time.  The impact of the Harvey case may be affected by whatever the Court determines in the Capella matter.

The impact of this case is that more employees and their counsel/advocates will explore psychological components of work injuries in order to increase permanent impairment assessments above the threshold based on a combination of physical and psychological factors.  This will, in turn, increase the value of workers’ compensation claims generally although in the long run, the addition of psychological permanent impairment may have the impact of increasing the “threshold” based on a threshold adjustment contemplated by 39-A M.R.S.A. § 213(2).  Whether permanent impairment thresholds are increased in the future or not, it is probable that counselors, psychologists, and psychiatrists will be increasingly accessed by employees which will adversely impact the cost of claims generally.

As with workers’ compensation claims generally, employers with appropriate transitional duty work and return to work programs will be impacted the least though there is no doubt that this decision, perhaps in conjunction with the yet to be decided Capella case, will increase the value of claims generally because it adds an additional source of permanent impairment with significant discretion to evaluators that was not officially recognized prior to the Harvey decision.

In David Sprague v. Lucas Tree Experts, 2008 Me. 162 (October 21, 2008), the dispute involved the manner in which a Section 312 physician assessed permanent impairment to the employee’s lower back under the “AMA Guides.”  The “AMA Guides” establish two methods of establishing permanent impairment: the range of motion model and the “injury” or “diagnostic related estimate.”  The “AMA Guides” prefer the “diagnostic related estimates” model (DRE) but allows the evaluator to have some discretion to utilize the range of motion model (ROM) where appropriate.

The Section 312 examiner used the range of motion model (ROM) and concluded that the employee suffered 12% permanent impairment as a result of his low back injury.  The employee’s treating physician and a Section 207 examiner used the DRE model and concluded that the employee suffered from 10% permanent impairment.  On appeal, the employer argued that it was an error for the Hearing Officer to adopt the Section 312 assessment (12% based on the ROM model) when there was clear and convincing evidence to the contrary given the treating physician and Section 207 use of the DRE model and their agreement of 10% permanent impairment.

Again, the Law Court deferred to the Hearing Officer’s determination and the fact that the “AMA Guides” do provide some discretion for the evaluator to use the ROM model.

At his deposition the Section 312 examiner agreed that the employee’s DRE permanent impairment category equated to a 10% permanent impairment.  He testified that he did not use that model and, instead, used the range of motion model because the ROM model allowed for an additional 2% permanent impairment when the patient has undergone multiple back surgeries (which the employee had undergone).

The Sprague decision may not have the impact of the Harvey decision, though it does stand for the proposition that permanent impairment evaluators have increased discretion to use a permanent impairment assessment model that equates with a higher permanent impairment than the use of the preferred model.  Of significance in the Sprague case was the fact that a Section 312 examiner made this determination, the employee had multiple surgeries, and the Court deferred to the Hearing Officer’s acceptance of the Section 312 examiner’s opinion.

Both Harvey and Sprague provide a foundation for an increase in permanent impairment assessments above the “threshold” with benefits payable for the duration of the incapacity pursuant to Section 213(1) of the Act.

Feel free to contact any of the TMF attorneys to discuss this or any other legal matter.

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