Making Change Work: AMA Standards

In an effort to reduce costs to business and ensure predictability in permanent disability awards, the Illinois Legislature in 2011 required the Commission to consider five factors in determining permanent disability:

1. impairment rating pursuant to the 6th Edition of the American Medical Association guidelines;
2. the occupation of the employee;
3. the age of the employee at the time of the accident;
4. the employee's future earning capacity; and
5. evidence of disability corroborated by the treating medical records.

The Commission was cautioned that "no single enumerated factor shall be the sole determinant of disability." While the Commission is tasked with considering the evidence introduced on each factor, there are some trends developing on which weighs heaviest.

The most significant thus far appears to be "evidence of disability corroborated by the treating medical records." And, notwithstanding the reference to medical records, the evidence that seems to have been most persuasive on the Arbitrators, to date, continues to be the petitioner's testimony at trial (so long as it is unrebutted). The AMA impairment rating is considered but seems not to be assigned great weight. In fact, the Arbitrator will discount, or even ignore, the AMA impairment rater's opinions if they were not formulated within certain criteria. Several attacks on impairment ratings have met with success. Some suggestions are included at the end of this article to remedy and combat these attacks.

It remains the Commission's view that a petitioner's occupation, if more labor intensive, will lead to a higher disability award than a petitioner who performs light work.

A majority of the decisions, thus far, note that a younger or a "somewhat younger" (up to 49 years of age) petitioner is entitled to a higher disability award since he or she will have to live with the disability longer. However, at least one Arbitrator decided that an older petitioner with a knee injury will have more limitations and residual symptoms and therefore a higher permanency award was justified.

A petitioner with a lighter job may still be able to make an argument for a higher disability award, if his future earning capacity may be impacted. In Garwood v. Lake Land College 12 WC 4194 (November 8, 2012), the Arbitrator noted that an accommodation made by the Respondent in allowing a computer instructor, who returned to work without restrictions after a left knee injury, to sit as needed, may not be accommodated by a future employer.

Unfortunately, there have not been many cases where evidence of petitioner's diminished future earning capacity was introduced. The majority of the cases so far involve petitioners who have returned to their prior job, earning the same wage and performing the same work activities without significant complaints. However, when petitioner returned to work earning less money, in a different position or had significant complaints of pain and difficulty in performing specific work tasks, a higher permanency value was assigned. The same is true if petitioner did not return to his prior job with the respondent and was terminated or retired, even if full duty release was achieved. Interestingly, the Commission views petitioner's inability to work even voluntary overtime as a loss of future earning capacity.

The good news is that permanency awards are overall decreasing. On average, for "typical" cases, there has been approximately a 12% reduction in permanency values from awards under the "old Act" to the awards under the "new" Act.