Protz Case: A Look at Disability Guidelines

Harrisburg, PA (WorkersCompensation.com) - The 2015 Commonwealth Court of Pennsylvania Protz v Workers’ Compensation Appeal Derry Area School District board ruling is just as much a matter of discussion today, when it comes to permanent and temporary disability as it was two years ago.

The Protz case ruled that permanent or temporary disability can be based on the legislative authority ruled on a “recent version” of guidelines set by the American Medical Association (AMA).

Two years ago, Florida Deputy Chief Judge David Langham wrote on the ruling in a September 2015 blog post, explaining “The Protz Court concluded that the state (or Commonwealth) has the authority to define standards by which impairment is determined, and in doing so it may adopt standards published by private groups. Statutory reliance on the AMA Guides is permitted,” writes Judge Langham.

“However once adopted, those guidelines remain in effect as adopted even if that private group (the AMA) thereafter amends or changes them,” he added.

Discussing the case, Council for Disability Awareness President Carol Hartnett said she fully understands both sides of the AMA guidelines and determining disability since being involved in a work-related accident in 2015 in Oregon, where she was hit by an Uber driver after making a keynote address.

Being a victim of injury brings a whole new light to AMA guidelines, Hartnett said. “The AMA guidelines for better or worse have been the gold standard for how you determine really what is called a permanence rating of disability,” she said.  

The respected speaker and consultant in absence and disability management said although authoritative, the “AMA guidelines miss” when it comes to rating mental health. “It doesn’t as cleanly look at the human side of an injury or illness that has been caused from work,” said Hartnett, who also serves on the Executive Committee and Board of Disabled Sports USA.

ODG (published by Work Loss Data Institute) is one of the leading medical treatment and return-to-work guidelines. It references evidence-based medicine, and its successes in improving claim outcomes.

Phil LeFevre, managing director of ODG from Work Loss Data Institute, based out of Austin, TX, said the institute does not publish impairment guidelines like the AMA guidelines to determine permanent disability status, rather the opposite.

“Our biggest focus is getting injured workers healthy and back to pre-injury functional status and to limit permanent disability as much as possible in getting their health and job status back to where it was,” LeFevre said. “Our focus is on temporary disability, with the objective of keeping disability temporary.” The director said amongst permanent impairment guidelines, the AMA “is basically the only player.”

“The only competition in that space is other versions of the AMA,” LeFevre said, adding the IAIABC (International Association of Industrial Accident Boards Commissions) has published supplemental impairment guidelines for workers’ comp, but they ride on top of the AMA Guides.

A February What’s Hot in Worker’s Comp report, published by Marshall Dennehey Warner Coleman & Goggin, referenced the Protz case, noted how when “an impairment rating of 28% under the 6^th Edition of the AMA Guides was given, the employer filed a notice to adjust the claimant to partial disability status.”

The report stated how a claimant in another case argued that under Protz v. WCAB (Derry Area School District, the Impairment Rating Evaluating of the physician witness was inept due to the use of the AMA Guides 6^th Edition. “The Board refused to address the issue because the claimant had not appealed the judge’s decision and never challenged the constitutionality,” reads the report.

Hartnett said though laws are dissimilar in every state, “workers’ compensation carriers want to close a case. It is different in every state and that is the challenge of comp,” she said, adding when she was involved in industrial rehabilitation as a psychologist, the team approach she and her colleagues took was highly successful. Working with physicians, physical and occupational therapists, vocational professionals and other medical experts, Hartnett said, “we would work as an integrated team and assessed them based on the AMA guideline suggestions, but we went even further.”

Her team also assed the psychological effects of work-related injuries. “A lot of impairment ratings don’t happen from a monetary perspective on non-occupational disability, but we still reference them for severity and frequency of claims,” she said. 

LeFevre said Work Loss Data has considered developing impairment guidelines for permanent disability. “It has been suggested that we get into this space,” he said. “But thus far we have been as focused and busy as can be with medical treatment and return to work.”

He said when you get into permanent disability, the courtroom follows. “You get into settlements and it becomes litigious and we want to avoid that at all costs. Our view is if you get the right medical care in place and you get it in place quickly, if you have a pro-active case management function and a focus on the return to work component as well, then you can avoid permanent disability because you did the right thing early to keep that case on track.”

The director said of course in cases of catastrophic injury, AMA guidelines are a sufficient standard. “Some injuries are permanent no matter what, and that is unfortunate,” he said, noting too often when they are not, many get caught in the system. “When you are off work too long, you can develop a disability mindset and get stuck in the treatment trap, particularly with opioids. The best way to limit permanency is to fast-track approval for evidence-based care, with a focus on return-to-work, including modified and transitional duty programs.”

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