As a physician with considerable scientific training in observation, respect for data, appreciation of margin of error, etc, I have always had difficulty with the precision of Medicine in determination of disability. Concepts of medical and rehabilitation needs and terms such as “guarded prognosis” have been difficult to fully understand or interpret. The precision I was used to in science was absent in medicine, which does not deal with absolutes, but with differential diagnosis and opinion.
Add to that the bias that the back and forth worlds of insurance examination and defense versus plaintiff law creates, and I found the IME/insurance law business to be anathema to whatever education and training I had experienced.
Along came the DAC system — a serious attempt to bring valid objectivity into this flawed world of medical legal opinion. I was particularly taken with the concept that disability (or ”ability”, as it were) could be somewhat better objectified by the introduction of functional testing by occupational therapists. This led to the FAE, or Functional Abilities Evaluation but I quickly realized that the FAE only tested Work Against Resistance, at least that was the model used in the days of the Disability DAC. As we refined the concept, we introduced testing of a more relevant nature to address fatigue and pain, emotional difficulties, brain injury and other subtle impairments that would help in defining the Situational Work Assessment in which individuals could be tested in their own “real world” to evaluate the more elusive and more invisible areas of disability. While we could not actually utilize the industry standard of “three months probation”, we at least began to appreciate the importance of such a concept, and the corresponding limitations of the then present day disability evaluations.
When the concept of Catastrophic Impairment came along, pragmatic definitions of “paraplegia”, “quadriplegia”, loss of limbs and total loss of vision came along, it appeared that at last we were moving toward some level of objectivity in the analysis of impairment and disability. The mandated use of the AMA Guides to the Evaluation of Permanent Impairment seemed like a great step forward — using a reference text for such analysis with the quantitative scoring for “each part”. However, the writing on the wall became visible when we struck committees to define what constituted an “arm” , what really was paraplegia as oppose to incomplete paraplegia and, finally, did a claimant meet the test of “total loss of vision in both eyes” when that claimant who had already lost the vision in one eye prior to the accident now loses vision in the second eye. These were not clinical decisions, they were legal ones.
With more recent changes in the SABS, the occupational therapist’s role in quantifying the outcome of traumatic brain injury under the determinative Glasgow Outcome Scale-Extended (GOS-E) test has advanced considerably and, accordingly, the evaluation of functional outcome of TBI has become a semi-quantitative evaluation. That’s fine at one level, but can any clinical tool truly, totally and objectively evaluate the multi-dimensional outcome of serious traumatic brain injury?
I have come to realize that the hope for objectivity comes at a price. We are in league with our legal brethren in asking the judiciary to interpret the definitions in the legislation that we as clinicians must address before concluding medical opinion. We are asked for our “clinical judgment” in interpreting issues that, in the end, are more legal than medical. And the next chapter will continue to be the legal interpretation of the many areas of vagueness, ambiguity and inconsistency in the AMA Guides themselves — the very tool we had hopes would lead us out of the quagmire. Perhaps this is why the Guides direct on page 5 that “It must be emphasized and clearly understood that impairment percentages derived according to the Guides criteria should not be used to make direct financial rewards or direct estimates of disabilities.”
The AMA Guides are indeed a quagmire of their own as clinicians in the medical community and lawyers and judges in the legal community are faced with increasing issues of interpretation. The terms “disability” and all of it’s various applications is now rightfully mired in the medical legal process where it has been mired for years.
I first presented this talk nearly ten years ago. At the time, I mused to the Catastrophic Impairment conference attendees, “I wonder what new thoughts will come in the next ten years. What will new case law bring to our interpretation of impairment and disability?” Now ten years on, it has become clear that Catastrophic Impairment is but an anachronistic term mired in previous and present legislation. We are still seeing inconsistent case outcomes. It is the interpretation of medicine impacting law that is the issue. Or should that be law impacting medicine? The boundaries become truly obscured. And unfortunately so.
Dr. Harold Becker