Litchfield's Case ( 2014 )

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13-P-1044 Appeals Court
ROBERT M. LITCHFIELD'S CASE.
No. 13-P-1044.
Suffolk. February 12, 2014. - August 28, 2014.
Present: Trainor, Katzmann, & Hanlon, JJ.
Workers' Compensation Act, Injuries to which act applies,
Coverage, Emotional distress. Mental Impairment.
Appeal from a decision of the Industrial Accident Reviewing
Board.
Charles E. Berg for the employee.
Paul M. Moretti for the insurer.
TRAINOR, J. Robert M. Litchfield appeals the decision of
the reviewing board of the Department of Industrial Accidents
(department) which affirmed a decision of an administrative
judge of the department. The administrative judge determined
that G. L. c. 152, § 36(1)(j), benefits for permanent loss of
psychiatric function were not available to Litchfield. We
affirm.
2
Factual and procedural background. The following facts are
taken from the administrative judge's subsidiary findings of
fact and are not in dispute. Litchfield "worked as a heavy
equipment mechanic for the [t]own of Westford, the employer
. . . , from 1984 until suffering an industrial injury to his
elbow and shoulder in 2001."
Litchfield "never suffered from anxiety and depression
prior to his industrial injury but has since. His depression
prevents him from working or doing the things he used to enjoy
including interacting with his family. . . . He spends his days
watching television, playing computer games and performing light
housework. He does get out of the house each day and works as a
municipal poll worker on election days. His elbow and shoulder
pain are always present. . . . The pain and inability to work,
directly caused by the physical injuries, have caused his
psychiatric conditions of depression and anxiety."
He has received compensation for these injuries under
various sections of G. L. c. 152. In 2004, he was awarded § 35
partial incapacity benefits for his physical injuries. In 2007,
he was awarded § 34 temporary total incapacity benefits for
these injuries. A panel of this court affirmed that award in
Litchfield's Case, 74 Mass. App. Ct. 1115 (2009). Also in 2007,
his § 36 claim for loss of function benefits for his shoulder
and elbow was adjusted. Finally, in 2009, he was awarded § 34A
3
permanent and total benefits for these injuries. Later, he
filed a claim for permanent loss of psychiatric function under
G. L. c. 152, § 36(1)(j). The denial of this claim is now
before us on appeal.1
Discussion. Authority to determine which version of the
American Medical Association Guides to the Evaluation of
Permanent Impairment applies. The insurer2 argued that the
department does not have the authority to determine which
edition of the American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides) applies to their
proceedings and that the AMA Guides (5th ed. 2001) (AMA Guides
5th edition) had been previously adopted.3 Compare AMA Guides
(6th ed. 2008) (AMA Guides 6th edition). See Larson, Larson's
Workers' Compensation Law § 80.07 (rev. ed. 2013) (Larson's
Workers' Compensation). While the insurer has not raised this
issue on appeal, we will nevertheless address it because we must
1
Our standard of review is controlled by the provisions of
G. L. c. 30A, § 14(7). See also Higgins's Case, 460 Mass. 50,
53 (2011); Spaniol's Case, 466 Mass. 102, 106 (2013).
2
The town was insured by Legion Insurance Company (Legion)
at the time of Litchfield's injury. Because Legion is in
liquidation, the Massachusetts Insurers Insolvency Fund has been
substituted for the insurer.
3
However, the insurer cited to Larson's Workers'
Compensation, see note 4, infra, to support its argument that
the use of the AMA Guides 5th edition was required in
Massachusetts but did not "indicate how the 5th edition was
supposedly 'adopted.'"
4
determine which edition of the AMA Guides applies to our
determination whether this employee is entitled to additional
specific compensation in his G. L. c. 152, § 36(1)(j), claim.4
The reviewing board and the administrative judge are both
"administrative tribunal[s] and, accordingly, 'possess[] only
such authority and powers as have been conferred upon [them] by
express grant or arise therefrom by implication as necessary and
incidental to the full exercise of the granted powers.'"
Taylor's Case, 44 Mass. App. Ct. 495, 497 (1998). The reviewing
board is charged with reviewing the decision of the
administrative judge and "revers[ing] the decision of an
administrative judge only if it determines that such
administrative judge's decision is beyond the scope of his
authority, arbitrary or capricious, or contrary to law." G. L.
c. 152, § 11C. The administrative judge must file a written
order concerning whether "weekly compensation or other benefits"
are due after conducting a conference, G. L. c. 152,
§ 10A(2)(a), and if that is appealed, after a hearing, the
administrative judge must issue a decision addressing the issues
that were before the judge. G. L. c. 152, § 11.
4
Also, at least one workers' compensation authority has
determined, incorrectly, that Massachusetts has adopted the AMA
Guides 5th edition. See Larson's Workers' Compensation, supra
at § 80.07[2] & n.8.
5
A determination of benefits available for injuries under
G. L. c. 152, § 36, "[w]here applicable, . . . shall be
determined in accordance with standards set forth in the
American Medical Association Guides to the Evaluation of
Permanent Impairments." G. L. c. 152, § 36(2). However, the
relevant statutory and regulatory provisions provide no guidance
regarding which edition of the AMA Guides should be used.5
Some states have specified by statute or regulation which
edition of the AMA Guides is to be applied when rating an
impairment, ranging from the AMA Guides 3rd edition (as revised)
to the AMA Guides 6th edition. See, e.g., Colo. Rev. Stat. § 8-
42-107 (2013) (3rd edition); Ark. Work. Comp. Commn. Rule 34
(1995) (4th edition); Vt. Stat. tit. 21, § 648 (2013) (5th
edition); R.I. Gen. Laws § 28-33-18 (2013) (6th edition). In
these states a newer edition can be applied to a claim only
pursuant to a change in the applicable statute or regulation.
Other states have provided that the "most recent edition" shall
be applied. See, e.g., Ariz. Admin. Code § R20-5-113. While
5
General Laws c. 152, § 36(2), provides: "Where
applicable, losses under this section shall be determined in
accordance with standards set forth in the American Medical
Association Guides to the Evaluation of Permanent Impairments."
The regulations provide: "All claims for functional loss under
the provisions of [G. L. c.] 152, § 36 or § 36A, shall include a
physician's report which indicates that a maximum medical
improvement has been reached and which contains an opinion as to
the percent of permanent functional loss according to the
American Medical Association's guide to physical impairment."
452 Code Mass. Regs. 1.07(2)(i)(1) (2008).
6
other states provide that impairment ratings shall be based on
the "current" edition of the AMA Guides.6 See, e.g., 820 Ill.
Comp. Stat. 305/8.1b. Massachusetts, however, does not provide
in either statute or regulation which edition of the AMA Guides
should be applied when rating an impairment.7
Determining which edition shall be applied in the absence
of any explicit guidance "is necessary and incidental" to the
board's power under G. L. c. 152, § 11C. See Perkins's Case,
278 Mass. 294, 299 (1932) (reviewing board has powers which are
a necessary implication from those expressly granted by the
statute). The reviewing board must determine whether the
administrative judge acted within the scope of his authority in
determining impairment ratings pursuant to G. L. c. 152, § 36.
In the present case, the reviewing board determined that it
was "appropriate for the administrative judge to utilize the
edition of the [AMA] Guides which reflects 'the most current
6
See generally Larson's Workers' Compensation, supra at
§ 80.07[2].
7
Beginning in 1958, the American Medical Association
published the first article entitled "A Guide to the Evaluation
of Permanent Impairment of the Extremities and Back." Larson's
Workers' Compensation, supra at § 80.07[1]. Separate articles
followed relating to other body parts. In 1971 thirteen
separate guides were compiled and published as the first edition
of the AMA Guides. The publication has been refined and
expanded five times since the 1st edition with the 6th edition
being published in 2008. Ibid. There are significant
differences among the editions, not only in emphasis of certain
areas, but also as a reflection of the latest consensus in
medical science within its subject matter.
7
scientific and clinical knowledge,' . . . at the time the
adopted medical opinion was given. This will ensure that an
outdated methodology is not utilized to determine functional
impairment ratings, or, in the case of mental and behavioral
disorders, that there is a methodology for making that
determination." Both of the physicians who offered impairment
evaluations here, did so after publication of the AMA Guides 6th
edition. We agree with the board that the AMA Guides 6th
edition, "as the most up-to-date version," was appropriately
considered and applied in this case.8
Reviewing board's interpretation of the AMA Guides 6th
edition. Chapter 14 of the AMA Guides 6th edition, for the
first time, recognizes and quantifies psychiatric losses of
function, providing "ratings for permanent impairment relating
to [mental and behavioral disorders]." AMA Guides 6th edition,
supra at 348. Compare AMA Guides 5th edition, supra at 167-176.9
The AMA Guides 6th edition "discusses impairments [which are
due] to mental disorders and considers mental and behavioral
8
We also note that the Supreme Judicial Court has cited
with approval the definition of "impairment" in the AMA Guides
6th edition. See Commonwealth v. Scott, 464 Mass. 355, 358-359
(2013).
9
Although the AMA Guides 5th edition included a chapter
related to mental and behavioral disorders, it did not include a
methodology for assigning a numerical impairment value. See AMA
Guides 5th edition, supra at 167-176.
8
impairments that may result from them." AMA Guides 6th edition,
supra at 347. The AMA Guides 6th edition currently only
considers impairments for selected well-validated major mental
illnesses.10 Id. at 349.
Litchfield argues that he is eligible for benefits pursuant
to G. L. c. 152, § 36(1)(j),11 for his loss of psychiatric
function. He argues that rating for this loss of function is
recognized for the first time in chapter 14 of the AMA Guides
6th edition and it does not matter that the psychiatric loss is
a secondary result of his physical injury or that he has already
received compensation under G. L. c. 152, §§ 34, 34A, 35, and
36, for the physical injury from which the psychiatric loss
stems. The board concluded however, and we agree, that the
provisions of chapter 14 do not apply to Litchfield's claim.
10
These currently include:
 Mood disorders, including major depressive disorder
and bipolar affective disorder.
 Anxiety disorders, including generalized anxiety
disorder, panic disorder, phobias, posttraumatic
stress disorder, and obsessive compulsive disorder.
 Psychotic disorders, including schizophrenia.
Id. at 349.
11
"An award of compensation under § 36 is 'separate and
distinct' from benefits an employee is entitled to receive under
other sections of the Act, including those for total
incapacity." Spaniol's Case, 466 Mass. at 107, citing from
Maloof's Case, 10 Mass. App. Ct. 853, 854 (1980).
9
The explanatory principles of assessment in chapter 14 of
the AMA Guides 6th edition provide that:
"Disorders that are not ratable in this chapter
include:
"Psychiatric reaction to pain: It is inherent in the
[2008] AMA Guides that the impairment rating for a physical
condition provides for the pain associated with that
impairment. The psychological distress associated with a
physical impairment is similarly included within the
rating" (emphasis in original).
AMA Guides 6th edition, supra at 349.
The principles of assessment also provide the rules for
using the mental and behavioral ratings in chapter 14. The
rules provide that:
"In most cases of a mental and behavioral disorder
accompanying a physical impairment, the psychological
issues are encompassed within the rating for the physical
impairment and the mental and behavioral disorder chapter
should not be used. . . .
"In the presence of a mental behavioral disorder
without physical impairment or pain impairment, utilize the
methodology outlined in this chapter."
Ibid.12
12
For the purpose of this opinion, we assume that a
permanent loss of psychiatric function is compensable under
G. L. c. 152, § 36(1)(j). This issue was neither raised nor
briefed. Nor has this question been addressed by this court or
the Supreme Judicial Court. See Yeshaiau v. Mount Auburn Hosp.,
27 Mass. Workers' Comp. Rep. 15, 19 (2013) (reviewing board held
G. L. c. 152, § 36(1)(j), includes compensation for psychiatric
injury).
10
The strategy of this scheme is reiterated throughout the
various chapters of the AMA Guides 6th edition. For example,
chapter 17 states that:
"Under most circumstances, however, [the] impairment rating
for mental health disorders related to the stressors that
often accompany a chronic, disabling musculoskeletal
disorder, is captured within the rating for the
musculoskeletal disorder itself."13
Id. at 581.
Furthermore, chapter 3 of the AMA Guides 6th edition,
regarding pain-related impairment, explains that:
"this edition of the [AMA] Guides does, for the most part,
construe pain as one of many manifestations of injuries or
diseases, and impairment ratings attempt to take into
account the pain that typically occurs in various
disorders."
Id. at 36.
And "[i]n no circumstances should the [pain related
impairments] developed using this chapter be considered as
an add-on to impairment determinations based on the
criteria listed in [c]hapters 4 to 17."
Id. at 39.
Finally chapter 2, regarding practical application of the
Guides, states that:
"[t]he impairment ratings in the body organ system chapters
make allowance for most of the functional losses
accompanying pain."
13
Chapter 3 of the AMA Guides 6th edition provides
impairment ratings "for chronic pain conditions that arise
independent of any organ system that is rated by the usual
methods." Id. at 581. Impairment ratings for a musculoskeletal
condition would use either chapter 15, 16, 17, or chapter 3.
Ibid. Combining these ratings is not permitted. Ibid.
11
Id. at 25.
The presence of a "physical impairment" and the pain
associated with that impairment appear to be the key factors
when determining whether a psychiatric impairment can be rated
under chapter 14. The administrative judge found facts which
indicated that Litchfield's injuries "continue to cause him pain
and continue to preclude him from returning to work. This pain
and inability to work, directly caused by [Litchfield's]
physical injuries, have caused his psychiatric conditions of
depression and anxiety" (emphasis added). Litchfield does not
dispute these findings.
Litchfield, however, argues that psychiatric loss of
function is awarded independently in jurisdictions that permit
recovery for mental injuries. He points out that the rules for
using chapter 14 provide that:
"In the event of a mental and behavioral disorder that is
judged independently compensable by the jurisdiction
involved, the mental and behavioral disorder impairment is
combined with the physical impairment" (emphasis in
original).
Id. at 349. Since Massachusetts, as do most jurisdictions,
allows recovery for mental consequences of industrial injuries,
Litchfield argues that the language in the AMA Guides 6th
edition entitles him to recover for his psychiatric loss of
12
function under G. L. c. 152, § 36, and as rated by chapter 14.14
However, the reviewing board rationally interpreted the term
"independently compensable" to require that the psychiatric
injury "be caused by the industrial accident itself."15
Moreover, Litchfield misapprehends the meaning of this rule
for the use of chapter 14. Assuming that the psychiatric loss
of function is independently compensable in a particular
jurisdiction and is ratable under chapter 14, the rule indicates
that a chapter 14 rating can be combined with a rating from a
different chapter in order to determine a whole person rating.
See AMA Guides 6th edition, supra at 20-22 & table 2-1
(explaining the procedure for combining impairment ratings in
14
Mental and emotional disabilities are compensable in
Massachusetts when they are directly caused by an employment-
related accident, without a physical component ("pure" mental or
emotional injury), or when subsequent to a physical injury which
causes a mentally disabling reaction. See Cornetta's Case, 68
Mass. App. Ct. 107, 108 (2007) (awarding § 34A permanent and
total incapacity benefits for work-related emotional
disability). See also Larson's Workers' Compensation, supra at
§ 56.03[1].
15
The term "independently compensable" is not defined in
our case law but other jurisdictions have used the term
consistently with the reviewing board's interpretation. See
Paternostro v. Edward Coon Co., 217 Conn. 42, 44, 47 (1991)
("The plaintiff has sustained a skull fracture and a dislocated
left shoulder in the course of his employment" which were "two
distinct, independently compensable injuries during a single
incident"); A.D. Stowe, Inc. vs. Ricks, No. 2704-98-1 (Va. App.
Apr. 27, 1999) ("The second injury can be independently
compensable even though it aggravates a pre-existing
condition").
13
different chapters to obtain a whole body impairment rating).
That, however, is not the situation that is presented here.16
Section 36 of the statute compensates for specific
individual loss of bodily function whether or not this loss is
causing total or partial disability. The § 36 rating and
compensation scheme is separate and distinct from any
determination of the extent that an employee's ratable losses
affect earning capacity. Since § 36 provides specific
consideration for a specific injury, a combined rating is not
considered in determining benefits under its authority. Section
36 has nothing to do with determining loss of earning capacity.
Chapter 14 of the AMA Guides 6th edition is clear in its
definition, and the limitation, of its rating of mental and
16
Some state statutes require that a whole person
impairment rating be provided to calculate an employee's
benefits. See, e.g., Alaska Stat. § 23.30.190(a), (b) (2012)
("the compensation is $177,000 multiplied by the employee's
percentage of permanent impairment of the whole person," which
is determined by the procedure set out in the AMA Guides); Mont.
Code Ann. § 39-71-711 (b), (c) (2013) (requiring that an
impairment rating "be based on the sixth edition of the American
[M]edical [A]ssociation Guides to the Evaluation of Permanent
Impairment" and "be expressed as a percentage of the whole
person"); N.D. Cent. Code § 65-05-12.2(10) (2010) ("If the
injury causes permanent impairment, the award must be determined
based on the percentage of whole body impairment"). The AMA
Guides 6th edition specifically notes the broad audience for the
publication: "44 [S]tates, 2 [C]ommonwealths, and [F]ederal
employee compensation systems . . . either mandate or recommend
using the Guides." AMA Guides 6th edition, supra at 20. The
AMA Guides 6th edition also asserts that it is increasingly used
to "translate objective clinical findings into a percentage of
the whole person." Ibid.
14
behavioral disorders. The chapter neither rates "psychiatric
reaction to pain" nor the "psychological distress associated
with a physical impairment" as these disorders are already
included and compensated within the rating methodology for the
physical impairment under other chapters. An injured employee,
under this scheme, who has been rated for his physical
impairment under other chapters of the AMA Guides 6th edition
has already been compensated for his pain and the psychological
distress resulting from that pain.
Therefore, under the over-all scheme of the AMA Guides,
Litchfield's claim for specific compensation under § 36 for his
pain and resulting depression and anxiety is not rated, and is
specifically excluded under the principles of assessment,
including the rules for using chapter 14.17 Litchfield remains
totally disabled due to the continuing physical consequences of
his injuries and due to the resulting pain, anxiety, and
depression.18 The administrative judge and the reviewing board
17
We acknowledge that, under these rules, a rating for
psychiatric impairment which is the result of a physical injury
is barred "[i]n most cases" (emphasis added). AMA Guides 6th
edition, supra at 349. It is therefore possible, according to
the AMA Guides 6th edition, to establish a rating for
psychiatric impairment resulting from a physical injury. Even
though the AMA Guides 6th edition apparently hold out that
possibility, this issue was neither argued below nor on appeal
and we therefore do not consider it.
18
Section 14.4 of the AMA Guides 6th edition provides that
as a "general principle . . . a condition is rated as
15
correctly concluded that a psychiatric reaction to pain is not
ratable under chapter 14 of the AMA Guides 6th edition, because
"the impairment rating for a physical condition provides for the
pain associated with that impairment" and "[t]he psychological
distress associated with a physical impairment is similarly
included within the rating." AMA Guides 6th edition, supra at
349.
"We ordinarily accord an agency's interpretation of its own
regulations considerable deference." Ten Local Citizen Group v.
New England Wind, LLC, 457 Mass. 222, 228 (2010) (Ten Local
Citizen Group), quoting from Warcewicz v. Department of Envtl.
Protection, 410 Mass. 548, 550 (1991). The AMA Guides 6th
edition acts as an adjunct to the workers' compensation statute.
It is required to be used, where applicable, by the statute and
is referred to in the regulation. We therefore treat its
interpretation by the reviewing board as we would the board's
interpretation of its own regulations. "The party challenging
an agency's interpretation of its own rules has a 'formidable
burden' of showing that the interpretation is not rational."
Ten Local Citizen Group, supra. Here, the reviewing board's
interpretation of chapter 14 is rational because the chapter
clearly states that when a psychiatric disorder is the result of
"permanent" when it is not expected to change significantly over
the next [twelve] months."
16
a physical impairment, the psychiatric disorder is not rated
under the guidance provided by chapter 14 but is included in the
compensation for the physical injury itself.
Decision of reviewing board
affirmed.