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Workers’ Comp Definition of “Disability” |
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479\aSFl#1 |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Duplicates
HB 613
Responses
Received From
Workers’
Compensation Administration
Department
of Health
SUMMARY
Synopsis
of SFl Amendment #1
The Senate Floor amendment gives the Workers’
Compensation Administration Advisory Council members the authority to approve
either the American Medical Association guide to the evaluation of permanent
impairment or the most recent addition of the American Psychiatric Association’s
diagnostic and statistical manual of mental disorders for the definition of
“disability.”
TECHNICAL
ISSUES
WCA
notes on page 1 line 22 the bill uses the term “and” between subsections 1 and
2. That means that BOTH conditions will
have to be satisfied. The department
believes the unintended consequence is that fewer workers will be eligible for
permanent total disability benefits than are presently eligible. The brain injury language is deficient in the
specification of the cause of the brain injury.
There is nothing in the bill that requires that the brain injury have resulted
from a work injury. Literally, a worker
with a pre-existing brain injury could, under existing case law, suffer a minor
injury from which he fully recovers and still receive permanent total
disability benefits.
The
amendment makes the bill facially unconstitutional by delegating the power to
indefinitely delay implementation of a bill (effectively, a pocket veto) to an
Advisory Council appointed by the Governor. The amendment also incorrectly
references the Advisory Council on Workers’ Compensation and Occupational
Disease Disablement.
OTHER SUBSTANTIVE ISSUES
WCA
indicates advocates for the bill have admitted that the inclusion of a
subjective standard (the American Psychiatric Association’s diagnostic and
statistical manual of mental disorders) will result in litigation in virtually
every case. The AMA objective standard
is well known in the industry and is the standard used in every other decision
concerning impairment under the act.
Additionally,
the department notes the amount of potential litigation is unknown, due to
limitation in WCA data concerning the relative seriousness of brain injuries
that have occurred. The Leo v. Cornucopia case, held in
“Because the statutory formula in the Workers'
Compensation Act, and the 1990 amendments thereto, for determining a worker's
residual physical capacity is silent as to the manner by which a judge is to
treat a worker's preexisting physical condition in determining permanent
partial disability, we believe that the legislature intended that the formula
be interpreted and applied in light of both existing precedent exemplified by
Reynolds and the SIA. Accordingly, we conclude that the legislature, in
enacting Sections 52-1-26 to -26.4, intended that when a worker suffers from a
preexisting physical impairment, which combines with the impairment
attributable to the work-related injury to produce disability, this impairment
must be included in the determination of the impairment rating to be used to determine
a worker's permanent partial disability.”
The
agency recommends retracting the floor amendment, changing page 1, line 22, to
read “or” instead of “and,” eliminating one of the standards, and insert
language concerning the ontology of the brain injury.
Finally,
the Workers’ Compensation Administration Advisory Council, after consideration
of this bill during a public meeting, tabled this legislation until its next
meeting on
Synopsis of Original Bill
Senate Bill 479 adds brain injury that results
in permanent impairment, as defined by the American Medical Association (AMA)
guide to the evaluation of permanent impairment or the most recent addition of
the American Psychiatric Association’s diagnostic and statistical manual of
mental disorders, to the existing definition of permanent total disability.
FISCAL
IMPLICATIONS
There is no appropriation or major fiscal impact
associated with this bill.
ADMINISTRATIVE
IMPLICATIONS
The Workers’ Compensation Administration (WCA)
anticipates litigation in virtually every case, especially when the two
reference sources conflict, and is unsure workload can be absorbed with current
staff.
TECHNICAL
ISSUES
WCA
notes the use of two alternative standards for determining eligibility will
certainly create litigation when the standards result in conflicting outcomes
as applied to one case. In the absence
of statutory guidance as to which standard to use in specified circumstance,
this feature will cause unnecessary expense to the system without clear
justification.
OTHER
SUBSTANTIVE ISSUES
The Department of Health
states, according to Centers for Disease Control and Prevention, there are an
estimated 1.5 to 2 million traumatic brain injuries (TBI) in the U.S. Brain
injuries are among the most likely types of injury to cause death or permanent
disability. Each year 80,000 to 90,000
people experience the onset of long-term or lifelong disability associated with
a TBI.
No two brain injuries
are alike; however, a common thread for all survivors is that their neurons
have difficulty carrying messages to their brain. Severe impairments to
performing common work-related functions, such as short and long term memory,
decision making, planning, sequencing, using sound judgment, reading and
writing, communicating, thinking quickly, problem solving, organizing,
perceiving self and others, flexibility, safety awareness and new learning, may
not be evident in a brain injury survivor's outward physical appearance. In addition, losses can be acute, permanent,
and prevent them from being able to obtain and keep a job, which includes going
back to the job they held at the time of their accident. Their physical ability to perform work is
often limited by: fatigue, weakness, poor balance, speech problems, sleep
deprivation, and seizures according to the Brain Injury Association of the
The American Medical
Association (AMA) guide to the evaluation of permanent impairment or American
Psychiatric Association's global assessment of functioning scale (GAF) are
standardized diagnostic objective medical evaluation tools used to measure
accurate impairment levels of persons with a brain injury. Persons that score a 50 or less on the GAF
are those that usually have multiple symptoms such as unable to keep a job,
depressed, defiant, illogical, in danger of hurting self, frequently violent,
unable to maintain personal hygiene, and have a serious impairments in social
and occupational settings.
WCA indicates the level of
impairment of brain function should be consistent with the disabilities in the
current law to be fair to physically injured workers.
The Workers’ Compensation Advisory
Council has had a process in place for several years for the review of proposed
legislation affecting the workers’ compensation system, pursuant to its
statutory mandate. The prior council had
a series of public meetings during the summer of 2002 where legislative
proposals for this session were discussed.
At the council’s request, proposals involving changes to workers'
compensation benefits were analyzed for their costs by the Workers'
Compensation Administration research staff, the National Council on
Compensation Insurance and New Mexico Mutual Casualty Company. The specific language contained in this proposal
has never been submitted to or reviewed by either the former or current
Workers’ Compensation Advisory Council. It is the position of the current Workers’
Compensation Advisory Council that, at the present time, it opposes this bill.
POSSIBLE QUESTIONS
1. Can temporary or treatable conditions such as
depression, a common “secondary mental impairment,” contribute to the impairment
rating under the standards set out in the bill, resulting in the anomalous
result that a temporary and treatable condition results in lifetime benefits?
2. In a case where the two references conflict,
which reference should be the dominant reference, the American Medical Association
or the American Psychiatric Association?
KBC/njw