Fourth Quarter 2017

Wisconsin

By: Thomas Locke Henry

Question: Under Wisconsin law, can an impairment rating be submitted into evidence and how effective are the ratings in mitigating permanency exposure?

Short Answer: No. An AMA impairment rating may not be submitted into evidence in Wisconsin. Wisconsin has developed its own system for rating permanency utilizing statutory minimums found in Wisconsin’s administrative code. See, DWD 80.32. These statutory minimums are used in conjunction with statutory injury schedules to determine permanency exposure in Wisconsin Workers Compensation cases.  See, Wis. Stat 102.52 (scheduled injuries) and Wis Stat 102.44(3) (non-scheduled injuries).

Discussion: In Wisconsin, permanency ratings are largely based on the percentages found in DWD 80.32, which assigns a percentage of permanency based on loss of function as compared to amputation. This includes both range of motion and sensory losses. Additionally, DWD 80.32 assigns minimum permanency ratings for typical surgical procedures such as meniscectomies (5% with good result) and spinal fusions (10% for each level with good result).

The body of law developed by the Labor and Industry Review Commission (LIRC), Wisconsin’s appellate body for reviewing Workers Compensation decisions made by Administrative Law Judges, deals with few cases involving the utilization and attempted utilization of AMA impairment guidelines in physician reports regarding permanency.

Wisconsin’s Department of Workforce Development (DWD) has created a document detailing how physicians are to evaluate permanency. See, WKC-7761-P, Evaluating Permanent Partial Disability. Notably, WKC-7761-P acknowledges that AMA guidelines may be consulted for comparison and informational purposes, but may not be the basis for disability evaluations, which are to be based on the schedule of injuries in the DWD administrative code. WKC-7761-P discusses loss of range of motion as forming the basis for permanency ratings, but also notes that such ratings may be based on pain (in varying levels), loss of strength, loss of endurance, loss of sensation, and increased sensitivity. Essentially, the Wisconsin standard permits physicians to assign permanency ratings based on their professional judgement. For instance, in Edholm v. Polaris Industries Inc., WC claim No. 1997018338, (LIRC, Mar. 31, 1999), LIRC notes that treating physicians may consult and consider AMA standards, but must base permanency ratings on the Wisconsin standards.

The Labor and Industry Review Commission has previously stated that it “normally rejects medical reports which rate disability based on AMA standards rather than using the system developed under Wisconsin law.” Lang v. Consolidated Papers Inc., WC Claim No. 89048039, (LIRC, Sept 8, 1997). However, permanency ratings utilizing AMA impairment guidelines have been admitted and found credible by LIRC in limited circumstances when the rating system developed by the DWD does not provide guidelines for the particular condition at issue. For instance, in the Lang case noted above, the injured worker sustained a closed head injury after an on the job fall from 9 feet off the top of a machine. The injured worker’s treating physician authored a report regarding the applicant’s condition at the request of the applicant’s attorney in which he cited AMA guidelines for evaluating permanent injuries. The Respondent argued the treating physician’s permanency rating lacked credibility because of the use of AMA guidelines. However, LIRC held that although they typically reject ratings based on AMA standards, the Wisconsin system, including the version of WKC-7761-P that existed at the time, did not provide criteria for assessing permanency in cases of head injuries and mental disabilities. Thus, LIRC held that the treating physician’s disability rating remained credible despite his reference to AMA guidelines. This holding suggests that AMA standards may be utilized in instances where Wisconsin law and administrative materials do not provide criteria for assessing permanency with respect to certain conditions such as traumatic brain injuries.

Unlike Lang, where a Respondent party attempted to discredit permanency ratings that utilize AMA rating guidelines, the Respondent in Bruggink v. Kohler Corporation, WC Claim No. 1996062359 (LIRC,  Feb. 10 2000) sought to utilize AMA impairment rating guidelines in an effort to support a finding of no permanency. In Bruggink, the injured employee suffered from occupationally induced asthma that was non-disabling with respect to pulmonary function when he used his medication. Respondent sought to utilize AMA impairment rating guidelines that stated permanency ought to be assessed when the worker is receiving optimal treatment. As such, Respondent argued that when the injured worker takes his medication, he has no permanent disability as measured by pulmonary tests. The Commission was not persuaded that the AMA position on how to rate permanency with respect to occupational asthma was satisfactory or certain, and ultimately held that the injured worker had sustained permanent disability to his pulmonary system.

Practice Tip: In Wisconsin, beware of relying on independent medical evaluation and record review reports where physicians have based their permanency opinions on AMA impairment guidelines. The Labor and Industry Review Commission typically rejects such reports, especially in cases involving orthopedic injuries. However, in instances where LIRC has accepted reports basing permanency on AMA guidelines such as closed head injury cases or in instances in which DWD 80.32 and WKC-7761-P do not provide guidance with respect to permanency ratings, then it may be helpful to provide a medical expert with the AMA guidelines, especially if the guidelines support an argument for a lower rating compared to what is submitted by the applicant’s treating physician.