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PENNSYLVANIA FEDERATION OF INJURED WORKERS Call us toll free 1-888-376-7942
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June 15, 2003
PA Commonwealth Commits Fraud on Injured Workers Expressed opinion by Michael A. Kerstetter, PFIW Dauphin County Pennsylvania Legislators voted to use the American Medical Association's "Guide to the Evaluation of Permanent Impairment" for determining a disability rating for injured workers. The Guide is being used in the wrong way. Pennsylvania has skipped a complete step when using the guide. The Commonwealth fails to translate the impairment rating to a disability rating. The Commonwealth is using the impairment rating as the disability rating. This is wrong, unfair, and unethical and may even be illegal! Worker's Compensation evaluates Disabilities not Impairments; there is a big difference. The Pennsylvania Legislators know about the unfair evaluation of disabilities using of the AMA's "Guide to the Evaluation of Permanent Impairment" but yet they continue to allow its misuse. Section 301 of the Pennsylvania Worker's Compensation Act 57 authorizes the AMA's guide and it's use:
Here are the reasons the AMA's "Guide to the Evaluation of Permanent Impairment" should not be used for evaluating disabilities under the PA Worker's Compensation Act: 1. The AMA itself has warned against the use of its "Guide to the Evaluation of Permanent Impairment" for evaluating disabilities for worker's compensation. (AMA's article about using the guide) 2. The first chapter of the most recent fifth edition of the AMA's "Guide to the evaluation of Permanent Impairment" warns against using the guide for evaluating disabilities for worker's compensation. 3. The country's leading expert, Christopher R. Brigham, MD, on the AMA's "Guide to the Evaluation of Permanent Impairment" states this: "The Guides assess impairment, not disability - regrettably they are widely used as a proxy to disability. The Guides - Fifth Edition explain that they are not to be used as a reflection of the ability or inability to perform work. This is outlined in Chapter 1 of the Guides." 4. Chief Administrative Law Judge, Robert J. Smith, of the State of West Virginia Office of Judges, has found that the use of the DRE Model as required in the Fourth Edition of the AMA Guides is contrary to the West Virginia workers' compensation statute.
If the Chief Counsel of the Commonwealth were to look at the way the AMA guide is being used for disability evaluations and ratings, it may be found to be contrary to the Pennsylvania Worker's Compensation Statute. The problem in Pennsylvania is that no one wants to know if injured workers are getting a fair disability evaluation. So far the state has suffered no consequence for the misuse of the AMA’s guide, so therefore the Commonwealth feels not obligation to change. The Pennsylvania Federation of Injured Workers has sent a review of this issue to all Pennsylvania Legislators but has had no response to date. The PFIW has also brought up this issue at the Pennsylvania Worker's Compensation Advisory Council meeting on September 19, 2002. The information was taken off the record because the meeting adjourned due to a time issue. Most of the members present at the Advisory Council stayed for an extended meeting off the record. The issue was resubmitted at the May 15, 2003 Advisory Council meeting, which was canceled due to a lack of a quorum. Again, the information was taken off the record.
What the Legislators did in Section 301 of the worker's compensation act is to change the disability rating system to an impairment rating system. If you read the section 301, you can see how the word impairment is slipped in where it should say disability. When a worker is permanently injured it is referred to as a disability. The use of the current language and concept may be in conflict with the PA Worker's Compensation Statute. Worker's Compensation is supposed to determine the disability an injured worker has due to a work related injury not the impairment. Why would Legislators want to make this change to the act? It allows the employers/worker's compensation insurance companies to litigate workers compensation claims away to nothing. The Commonwealth requires a 50% disability rating under the AMA to be rated as fully disabled. Under the AMA guide, the best anyone could achieve is a 38% disability rating. The 38% rating is actually an impairment rating that PA fails to translate into a disability rating. This can never be achieved using the AMA guide so therefore it has guaranteed the insurers and the employers that there will be a time limit on a claim for a worker related injured. If an injured worker cannot obtain a 50% disability rating then the claim will only last for 500 weeks. Most injured workers end up on Social Security Disability because they are denied workers compensation.
With all of this evidence against the use of the AMA's "Guide to the Evaluation of Permanent Impairment" and nothing to support the use of the guide, except for the willingness of the Legislature to use the guide, why is it still being used by Pennsylvania Worker's Compensation Bureau? Thousands of injured workers have been improperly evaluated for their work related disability. They have been given an impairment rating and not a disability rating by the Commonwealth. All of the cases evaluated since the use of the guide began, will have to be re-evaluated to make them correct. Talk about a major set back. How will these injured workers get a fair disability rating? This cannot be swept under the carpet. Allowing the AMA's guide to be used, the way it is used by the Commonwealth, has benefited the worker's compensation insurance industry with windfall profits because an injured worker's claim can be terminated based on the inaccurate disability rating created by using the guide.
Where is the help for the injured worker?
When an injured worker is denied worker's compensation or the 500 weeks of partial disability runs out, what happens? The injured worker still has the disability! Most injured workers end up on Social Security Disability. This is an unethical shift of the expense of an injured worker from the employer/worker's compensation insurance company to the Social Security System. ENRON accountants would be proud of this accounting practice. It deceives the public and no one knows about it. This should outrage everyone since Social Security is in such bad shape financially but it doesn’t. The PFIW has contacted all Commonwealth Federal representatives about this problem and they have chosen to turn their backs on the problem.
The Commonwealth is in violation of the Pennsylvania Constitution by changing the workers compensation act to accommodate the use of this guide. Any change to the worker’s compensation act since it’s origin is a renege on an agreement that was originally made between employers and employees. Workers gave up the right to sue an employer for no fault workers compensation and to change the workers compensation act at the whim of the insurance industry just shows you the desperation of our elected officials to obtain campaign financing and their lack of concern for injured workers. The Commonwealth has reneged on its agreement to supply no fault workers compensation to injured workers.
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