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HB |
613/aHLC |
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SHORT TITLE: |
Workers’ Compensation Act Definitions |
SB |
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ANALYST: |
Collard |
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APPROPRIATION
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Duplicates SB 479
Responses Received From
Workers’ Compensation Administration
Department of Health
Developmental Disabilities Planning Council
SUMMARY
Synopsis of HLC Amendments
The House Labor and
Human Resources Committee amends House Bill 613 by making the conditions of
permanent total disability either the
total loss of both hands, feet, eyes, arms, or legs, or any combination of two,
or permanent brain injury as
determined by the American Medical Association (AMA) guide to the evaluation of
permanent impairment or the most recent edition of the American Psychiatric
Association’s (APA) diagnostic and statistical manual of mental disorders,
rather than requiring both conditions.
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.”
WCA
recommends eliminating one of the standards, either the AMA or the APA, 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
House Bill 613 adds
brain injury that results in permanent impairment, as defined by the American Medical
Association guide to the evaluation of permanent impairment, or the most recent
edition of the American Psychiatric Association’s diagnostic and statistical
manual of mental disorders, to the existing definition of permanent total
disability.
ADMINISTRATIVE
IMPLICATIONS
The Workers’
Compensation Administration (WCA) anticipates minimal litigation when the two
reference sources conflict, but notes the 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.
The Developmental Disabilities Planning Council indicates the number of
claims in this area would be very small.
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/yr/njw